By Kevin Lungwitz
It is important for campus administrators to know the basics of handling an allegation of sexual misconduct against students on their campus. In the next issue of TEPSA News we will look at student to student sexual misconduct. Here, we will examine employee to student sexual misconduct.
Place on Administrative Leave
When there is an accusation against an employee which, if true, could compromise the safety of the campus community, placing the accused on paid administrative leave is the first step. This is usually carried out by human resources under the authority of the superintendent in consultation with the school’s lawyer. If your school district does not have a functioning human resources department, you should prepare an immediate recommendation for your superintendent to place the employee on paid administrative leave. Administrative leave achieves several goals:
- It protects the school community from further alleged harm.
- It protects the accused from allegations of meddling with the investigation.
- It gives the school some breathing room in which to conduct a thorough investigation.
- If employed pursuant to a contract, it provides pay and benefits to the accused until the investigation is completed and an employment decision is made. (If the employee is at-will, a determination will have to be made about the relative fairness of paid versus unpaid administrative leave.)
While on leave, the employee should be admonished not to communicate with potential witnesses such as students, parents, and other employees, as the situation might dictate. Another common administrative leave rule is, “Do not visit your campus or district property without written permission from (fill in the blank).” If the employee is also a school parent, the school can decide if exceptions can be made for community events like band concerts, football games and the like. In addition to revoking physical access, the school might also revoke virtual access to email and other school communication platforms.
Call CPS
An allegation of sexual misconduct by an employee against a student must be reported to CPS immediately, but certainly within 48 hours of your awareness of the allegation. Do not wait for more information to come in. According to the law, you are required to make a report to CPS within 48 hours of having “reasonable cause to believe” that child abuse or neglect has occurred or may occur.1 If you wait until the school’s investigation is completed to reach that conclusion, which could be several weeks after receiving the allegation, CPS or law enforcement might accuse you of failing to report. We can debate the niceties of the law should that occur, but your primary goal is to avoid that scenario. Failure to report is a Class A, jailable misdemeanor. If you are unsure what to do, call CPS and inquire, and seek legal advice from the school’s lawyer.
Investigate
Investigating an allegation of sexual misconduct by an employee against a student is required by law even if the employee resigns.2 The investigation can be tricky as it must be coordinated with law enforcement and/or CPS. The school must find a way to share the evidence collected by CPS or law enforcement or wait until the coast is cleared by CPS and law enforcement to conduct its own personnel investigation. In a high stakes investigation regarding sexual misconduct of an adult against a student, it is best to work with highly trained human resources staff and the school’s lawyer, if available.
Once the school is able, the goal of the investigation is to collect and follow the evidence, no matter where it leads. Make sure parents are contacted for permission before interviewing students. Always interview students one by one and in the presence of at least two school officials and possibly a parent. If the alleged victim and potential witnesses are able, have them write answers to open-ended, written questions. Refer alleged victims to the counselor as needed.
Is there other evidence? You must get permission to examine the student’s or employee’s phone and private social media, but maybe evidence exists there. Emails, text messages, other communication platforms, pictures, and public social media should be considered. Make sure to locate and preserve relevant classroom or other school video or pictures.
Your goal is to collect all evidence, even if it is exculpatory. If some witnesses identified by the alleged victim heard or saw nothing, get their statements, too. If the cafeteria video or social media refutes the allegation, preserve and note those facts.
At the end of the investigation the school must decide to reinstate the employee, and/or reprimand the employee, or dismiss the employee. Before accepting an employee’s resignation, the school must inform the employee that a report to SBEC will be made.3
Report to Parents, Superintendent and TEA
The school district is required to report to the parents or guardian of a student-victim of employee sexual misconduct: 1. That the alleged misconduct occurred; 2. Whether the educator was terminated following an investigation of the alleged misconduct or resigned before completion of the investigation; and 3. Whether a report was submitted to the State Board for Educator Certification (SBEC) concerning the alleged misconduct. The parent report is required to be made “as soon as feasible after the employing entity becomes aware that alleged misconduct may have occurred.”4
A principal must notify the superintendent in writing within seven business days after an employee resigns or is fired for sexual misconduct with a student.5 A superintendent must report to SBEC in writing within seven business days after receiving notice from the principal, or within seven business days of having knowledge that the employee resigns or is fired and evidence exists that the employee engaged in sexual misconduct with a student.6 Failure of the principal to notify the superintendent, or failure of the superintendent to report to SBEC, could result in the principal’s and/or superintendent’s certificates being sanctioned and/or a fine being imposed up to $10,000.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
1Tex. Family Code Sec. 261.101
2Tex. Educ. Code Sec. 21.006 (b-1) “A superintendent … shall complete an investigation of an educator that involves evidence that the educator may have engaged in [sexual] misconduct [with a student]… despite the educator’s resignation from employment before completion of the investigation.
3Title 19 Tex. Admin. Code Sec. 249.14 (d)(3)(A)
4 Tex. Educ. Code Sec. 21.0061(a)&(b)
5Title 19 Tex. Admin. Code Sec. 249.14 (e)
6Title 19 Tex. Admin. Code Sec. 249.14 (d)(2)
TEPSA News, September/October 2023, Vol 80, No 5
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Note: Information from Legal Ease is believed to be correct upon publication but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
