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Recent national sexual misconduct policy concerns school districts



Monitor staff
Tuesday, December 04, 2018

A national policy meant to prevent school districts from aiding sexual abusers in getting a new job has some concerned about how such a policy is enforced.

The Concord school board passed a policy Monday night that prohibits a school district and its employees from giving a recommendation or “otherwise assisting” any school employee or contractor in obtaining employment if the district “has knowledge or probable cause to believe that the other employee ... engaged in sexual misconduct with a minor or a student.”

But some members have concerns about the burden it could place on the district.

“There are a lot of expectations governing this policy,” said outgoing board member Nathan Fennessy. He went on to say he wasn’t sure he’d recommend the policy if it wasn’t required.

The board ultimately decided to adopt the policy this week with plans to discuss how it would be followed in the future.

An amendment to Elementary and Secondary Education Act (ESEA) requires all school districts receiving federal funding to adopt policies that would prohibit giving recommendations to people they know or believe have engaged in sexual misconduct.

Exceptions to the policy include incidents that have been “properly reported” to law enforcement or agencies such as the New Hampshire Division for Children, Youth and Families; if the matter has been officially closed or dropped due to insufficient information or acquittal; or if the matter remains open and there have been no charges filed four years after the information was reported, according to Concord documents.

At an October communications and policy committee meeting, Fennessy said while he thought the policy was a good idea, it could be “very problematic” to enforce. He said then that the policy does not outline what constitutes misconduct, and how allegations and findings of misconduct should be weighed.

He also said probable cause is very different from beyond reasonable doubt and that the school district may not be adequately trained to make that judgment on their own.

And Jennifer Patterson said that the policy puts the burden on the school district to keep track of when allegations were made and the status of court trials.

“The way we could implement it is that you’re not going to give a recommendation to a colleague,” she said in October. “We’re not going to allow that; we’re going to centralize that process.”

Members also questioned whether the policy would prohibit school employees from testifying as character witnesses for colleagues.

That issue has been a subject of First Amendment and professional standards for the educational community ever since former Exeter guidance counselor Kristie Torbick pleaded guilty to aggravated felonious sexual assault of a student this summer.

Several of Torbick’s colleagues provided character statements on her behalf. Many of those individuals faced professional repercussions or resigned in the face of public pressure.

Bow and Dunbarton superintendent Dean Cascadden said his board will take the policy up in the future. In light of the Torbick case, he said they might make their policy a little more broad to incorporate similar situations.

“One of the things we talked about as administrators was that we shouldn’t be providing testimony for the court unless subpoenaed,” he said. “As educators, it’s not our role to provide testimony.”

Cascadden said the district tries to speak with people who are providing references for potential job candidates, an “important step” in evaluating a person. When writing a recommendation, they explicitly mention any issues the district may have had with an employee, he said.

Merrimack Valley School District superintendent Mark MacLean said his school board hasn’t passed a policy yet but has had “no trouble” in complying with Section 8546.

He said the district has an established practice – not a policy – of verifying someone worked in the district, but those letters are “devoid of support of the person’s pedagogy,” he said.