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The challenges of accessing public school employees’ disciplinary records From the Summer 2004 issue of The News Media & The…

The challenges of accessing public school employees’ disciplinary records

From the Summer 2004 issue of The News Media & The Law, page 11.

After weeks of digging for details, reporters for The Lawrence (Mass.) Eagle-Tribune finally pieced together a story . . . part of it, at least.

Following up on a tip last year that a local teacher had been investigated by school officials for “improper contact” with a student, reporters at the Eagle-Tribune launched their own investigation. The newspaper eventually obtained a copy of an after-school online conversation in which Haverhill High School health teacher Lori A. Curry and a male student traded stories about their sex lives.

The district superintendent, Arthur Tate, confirmed the incident to the newspaper, but would say only that it had been investigated and handled internally. How it was handled, he told the Eagle-Tribune, was none of the public’s business.

Tate was legally correct. Three years earlier, the Massachusetts Supreme Judicial Court held that public employees’ disciplinary records were “absolutely exempt” from public disclosure under the state open records law. Disclosure, the court said in Wakefield Teachers Association v. School Committee of Wakefield, “may constitute an unwarranted invasion of personal privacy.”

More to the point, the 2000 ruling protected the professional privacy of public employees, shielding the details of wrongdoing and the disciplinary actions taken against them from public disclosure.

Curry, who was named Cosmo Girl magazine’s Teacher of the Year in 2002 for classroom excellence, no longer works at Haverhill High School. Tate still refuses to speak about the incident, and did not return repeated phone messages seeking comment. Curry, who has never publicly talked about the incident, also could not be reached for comment.

According to Bill Ketter, executive editor of the Eagle-Tribune, many details surrounding the incident remain a mystery — including whether Curry actually did anything wrong.

“What teachers do that draws attention to themselves is of public interest,” said Ketter, whose daily newspaper won a Pulitzer Prize in 2003 for an unrelated story. “The public has a right to know what they did and how they were disciplined.”

While open record laws vary greatly on the subject, a growing number of states have sought to limit privacy protections once afforded to public school teachers, administrators and staff. Sexual assault scandals involving minors have been the impetus behind most legislation designed to hold public school employees more accountable to the public. However, even those disciplined for relatively minor infractions — insubordination or the use of inappropriate language at work, for example — are increasingly h aving their punishments made public.

“I think we have a right to protect the public’s interest, especially when we’re talking about children and schools,” said Richard Cate, Vermont’s commissioner of education, whose department last year became one of only a handful nationwide to publish online the names of every public school teacher it had formally disciplined.

The page, posted on the Department of Education’s Web site, includes teachers’ names, place of employment, the infraction, all pertinent dates going back to 2001, and the action taken — license revocation, suspension or formal letter of reprimand. Cate calls the system, which was modeled after the one created by the New York State Education Department in 1997, a “progressive disciplinary process.”

Since 1984, the National Association of State Directors of Teacher Education and Certification has operated a similar database of teachers who have lost their certification for cause. But unlike Vermont and New York, the information is not public.

State agencies responsible for teacher certification voluntarily report to the national association the names, social security numbers and other relevant information about those who have lost their teaching licenses. Roy Einreinhofer, executive director of the privately owned company, said approximately 2,000 names are added to the list each year, with a current total of 21,000 teachers. As part of a paid agreement, however, only state education agencies have access to the database.

And similar to lists maintained by Vermont and other states, information is released only upon an official finding of guilt.

“There are far too many claims made against teachers and other folks that end up being unsubstantiated,” Cate said. “You’re not going to get good people to work in the profession if they think every time a kid gets mad at them that their whole career and life is at risk.

“We really have to make sure that we confirm that there was a problem and that we dealt with it before we talk about it,” he said.

Therein lies much of the debate.

In a series of stories published in December 2003, The Seattle Times reported that 98 of 159 coaches in Washington continued to teach or coach after being reprimanded or fired for sexual misconduct over the previous 10 years. The Times‘ investigation revealed that school districts often settled with abusers, allowing them to quietly resign and find work elsewhere — a phenomenon known in education circles as “passing the trash.” In other misconduct cases, school districts simply chose not to document disciplinary action when taken.

The newspaper said many school systems in Washington had quietly set aside allegations because of the six-figure cost of discharging someone, and fears that a public firing could tarnish the school’s reputation. The Times also cited another factor: teacher unions. “Even when school officials find wrongdoing, they often bow to pressure from the teachers union, handing out mild punishments or not at all,” the paper reported.

Such pressure was displayed during the Times‘ reporting of the series. One of the state’s largest school districts flatly refused to comply with a freedom of information request — among 110 filed throughout the state’s 10 largest school districts — for information pertaining to any disciplinary investigation of teachers or coaches for sexual misconduct. Instead, the Bellevue School District took the unusual step of asking the state teachers union to sue it to prevent the release of those records.

The Times was allowed to intervene, and argued that the public has an interest in knowing if complaints against public school teachers and coaches were ignored or prematurely dismissed. Other suits soon followed, involving a total of 36 teachers.

The newspaper won 21 cases, including five in which “districts did little or no investigation,” it reported. The teachers union won 15 cases.

“I never struggled with getting records so much in my life,” said Christine Willmsen, an investigative reporter for the past 11 years and one of two Times reporters who wrote the series. “But the story would not have been what it was without these public records.”

Diane Jennings, a reporter on the state desk at The Dallas Morning News, had a slightly easier time accessing teachers’ disciplinary records for a similar series published in May 2003. Although disciplinary files are open by law in Texas, poor record maintenance by the State Board of Educator Certification made uncovering the incidents an eight-month project.

“The state is not really equipped to respond to these requests,” said Jennings, who found 606 cases of actions taken against public school educators for sexual misconduct from 1995 to 2003. “It’s one thing to say it’s a matter of public record. It’s another to find the information and know how to get it.

“We had to go down to the state capitol and pull dusty boxes and go through files upon files of paper records,” she added. “Nothing is computerized, so a lot of records were missing.”

According to Lisa Patterson, associate general counsel for the State Board of Educator Certification in Texas, the actual number of abuse cases was probably much higher than what the Morning News discovered. She told the newspaper that local districts often either fail to document incidents or allow offenders to quietly resign.

A study commissioned by Congress and published in June found that more than 4.5 million children, or one out of every 10 students from kindergarten to 12th grade, have been the target of sexual misconduct by a school employee. The study broadly defined “sexual misconduct” as inappropriate comments or contact and physical abuse.

Such failures of oversight have led many in open government circles to call for a more transparent internal investigatory system of public school employees. When an allegation is made, they say, everything should be public: the accusation, the investigation, findings and how the matter was or will be resolved.

C. Edward Lawrence, author of The Marginal Teacher and How to Handle Staff Misconduct, vehemently disagrees with the “open everything” advocates. Teachers’ privacy must be respected throughout all internal disciplinary investigations, Lawrence said, even if an investigation takes years to resolve. The public simply has to trust that principals will follow district policy in handling and reporting allegations of teacher misconduct, sexual or otherwise, he said.

“If you make everything public, you’re going to destroy reputations and professional backgrounds,” said Lawrence, an assistant professor of education at the University of Nevada, Las Vegas and a former high school principal in Milwaukee, Wis.

The Wisconsin Supreme Court used that rationale in the 1996 case Woznicki v. Erickson, holding that a public employee whose reputation could be harmed by the release of any public record can legally challenge the information’s disclosure. Such challenges not only slow the release of public information, but can make the cost of fighting for access prohibitive.

Last summer, following years of legal battles over the release of public records, the Wisconsin Legislature significantly curtailed the circumstances under which a public employee can challenge the release of records. Under a compromise adopted by state lawmakers, however, public employees can still contest the release of information contained within their disciplinary files. Employees of private companies contracted by a public agency — school bus drivers or janitors, for example — can also contest the release of any information about themselves.

Elected public officials and appointed department heads no longer have either right, but they can add a letter of protest to their files.

Robert Dreps, a media attorney in Milwaukee who served on the legislative committee that recommended the bill to state lawmakers, said public school teachers are “clearly covered” by the disciplinary records exemption. But that doesn’t mean the records can automatically be withheld, Dreps said. Public employees can only challenge a record custodian’s decision that the public interest in the disciplinary information outweighs the potential harm to the reputation and privacy of the employee.

“We expect to have a fight every time we request teachers’ records because they have a very strong union,” Dreps said.

Former middle school teacher Larry J. Robinson and the Racine Education Association put up such a fight in July. After Robinson was charged in June with sexually assaulting three female students, The Journal Times sought his personnel records under the state open records act.

Robinson’s attorney, who also represented the teachers union, argued in court that releasing the records would discourage future teachers from entering the profession.

The circuit court judge disagreed, holding that the public interest in the records — including why Robinson was hired in Racine when there had allegedly been complaints about him from a previous teaching job — outweighed Robinson’s privacy interests.

Other union officials freely acknowledge the importance of ridding a school of its bad apples . . . but only when due process calls for it.

“We don’t have a stake in protecting those who don’t belong in the classroom,” said Carl Korn, a spokesperson for the New York State United Teachers, the largest state teachers union in the nation. “We do have a stake in making sure our members receive a fair and impartial proceeding.”

According to Korn, public oversight of all internal investigations, including their outcomes, would only jeopardize fairness.

“I don’t know what it serves to give reasons for every resignation and settlement,” said Korn, citing the example of a teacher who is disciplined for missing too many days of work due to an elderly parent. “People deserve privacy.”

Because public employees’ personnel records are routinely exempt from state open record laws,the question of what constitutes “discipline,” as opposed to a “negative performance evaluation,” is often litigated. In April, the Connecticut Appellate Court held that “an activity may be related collaterally to teaching, but nevertheless merit discipline.” The court granted the (Manchester) Journal Inquirer information concerning the two-week suspension of a high school teacher for showing an “age inappropriate” film in class.

The court further ruled, in citing state precedent (Carpenter v. Freedom of Information Commission), that a document which “relates to an activity that takes place on school grounds, during school hours or during classroom instruction time does not always make that document a performance evaluation that is exempt from freedom of information disclosure requirements.”

In May, an appeals court in California similarly ruled in favor of releasing a public school employee’s disciplinary record under the state Public Records Act. Affirming a superior court’s ruling, the three-judge appellate panel in Bakersfield City School District v. The Bakersfield Californian held that when a “disciplinary investigation reveals allegations of a substantial nature, as distinct from baseless or trivial, and there is reasonable cause to believe the complaint is well-founded, public employee privacy must give way to the public’s right to know.” However, it also ruled that the imposition of discipline, or a finding that an allegation is true, are not prerequisites for records to be released.

Cate, of the Vermont Department of Education, said balancing the public’s interest in disciplinary investigations and protecting the professional privacy of teachers often requires walking “a very fine line.”

“As long as you stick to the facts and the process has been completed, I think the public has a right to the information,” Cate said. “What you don’t need to do is provide every detail that some newspaper might want throughout the process.”