1. 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

2. ILLEGAL DISCRIMINATION SEXUAL HARASSMENT MANDATORY CHILD ABUSE REPORTING Legal Seminar Topics Include:

3. SIGNIFICANCE   It is important that teachers know and understand their professional, legal and ethical obligations within an educational setting (TPE 12).

4. 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.

5. 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.

6. 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) 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) 1)Disability 2) 2)Gender 3) 3)Nationality 4) 4)Race or ethnicity. 5) 5)Religion 6) 6)Sexual orientation 7) 7)Association with a person or group with one or more of these actual or perceived characteristics

7. 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.

8. Questions for Discussion 1. 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?

9. 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”.

10. 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?

11. 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 5 th 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.

12. 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?

13. 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.

14. 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.

15. 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.

16.  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. Examples of other types of conduct that are prohibited in many school districts and which may constitute sexual harassment include:

17. 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.

18. 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. 1. Keep accurate and detailed records of the sexual harassment incident. 2. 2. Report sexual harassment to the appropriate person at your school site. 3. 3. Follow your school district’s policies and procedures on sexual harassment reporting.

19. Sexual Harassment 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. Scenario 1: Two Fifth Grade Students

20. 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?

21. 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: 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) 1)a school official was aware of the misconduct and showing deliberate indifference failed to take proper remedial action and 2) 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. Court Decision in Davis Case

22. Sexual Harassment 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. Scenario 2: Teacher to Student

23. 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?

24. 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” 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”

25. Mandatory Reporting of 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 Definition of Child Abuse:

26. California Penal Code Section 11166 Any child care custodian, medical practitioner, non- medical 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.

27. Mandated Reporters of Child Abuse “Mandated Reporters” include virtually all school employees. The following school personnel are required to report: “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. 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.

28. 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. “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. 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.

29. 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.

30. 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.

31. 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.

32. 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.

33. 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”.

34. 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?

35. Frequently Asked Questions Affection and hugs After school activities with teacher Pornographic sites Discipline Gone Too Far? Pet Names

36. 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?

37. Pet Names Can a classroom teacher refer to his/her students as “honey” and “sweetie” without being accused of sexual harassment?

38. 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?

39. 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?

40. 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?

41. 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.

42. 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   www.aclu.org/StudentsRights/StudentsRights.cfm?ID=13147&c=155 www.aclu.org/StudentsRights/StudentsRights.cfm?ID=13147&c=155   www.aclunc.org/students/guide/disc.html www.aclunc.org/students/guide/disc.html   www.glsen.org/templates/student/record.html?section=105&record=525 www.glsen.org/templates/student/record.html?section=105&record=525   www.usdoj.gov/crt/cor/coord/titleixstat.htm www.usdoj.gov/crt/cor/coord/titleixstat.htm   bailiwick.lib.uiowa.edu/ge/ bailiwick.lib.uiowa.edu/ge/   www.edc.org/WomensEquity/about.htm www.edc.org/WomensEquity/about.htm   www.aclu.org/StudentsRights/StudentsRights.cfm?ID=10356&c=155 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=10299&c=155   www.aclu.org/StudentsRights/StudentsRights.cfm?ID=8735&c=155 www.aclu.org/StudentsRights/StudentsRights.cfm?ID=8735&c=155   http://hardtruthaboutaids.com/Misc/discrimination_in_public_schools.htm http://hardtruthaboutaids.com/Misc/discrimination_in_public_schools.htm   http://www.aclu.org/getequal/timeline.htm#2000s http://www.aclu.org/getequal/timeline.htm#2000s

43. 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://www.de.psu.edu/harassment/legal/  http://encarta.msn.com/encyclopedia_761579949/Sexual_Harassment.html http://encarta.msn.com/encyclopedia_761579949/Sexual_Harassment.html  http://www.now.org/issues/harass/gebser.html http://www.now.org/issues/harass/gebser.html  http://supct.law.cornell.edu/supct/html/97-843.ZS.html http://supct.law.cornell.edu/supct/html/97-843.ZS.html  http://www.alllaw.com/articles/education/article1/asp http://www.alllaw.com/articles/education/article1/asp  http://www.wcwonline.org/harassment/resources.html http://www.wcwonline.org/harassment/resources.html  http://www.wgby.org/edu/flirt/fhmain.html http://www.wgby.org/edu/flirt/fhmain.html

44. 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   http://www.sonoma.edu/cihs/mr/docs/traingen.html http://www.sonoma.edu/cihs/mr/docs/traingen.html   http://www.accapc.com/mandated.cfm http://www.accapc.com/mandated.cfm   http://www.co.sanmateo.ca.us/hsa.dir/childabusecouncil/facts.html http://www.co.sanmateo.ca.us/hsa.dir/childabusecouncil/facts.html   http://www.ebac.org/programs/school/cap.asp http://www.ebac.org/programs/school/cap.asp   http://www.smith-lawfirm.com/mandatory_reporting.htm http://www.smith-lawfirm.com/mandatory_reporting.htm   http://www.smith-lawfirm.com/teachers.htm http://www.smith-lawfirm.com/teachers.htm   http://www.smith-lawfirm.com/Connsacs_brochure.html http://www.smith-lawfirm.com/Connsacs_brochure.html