Turning the Bainbridge Island Alleged Teacher Abuse into a Learning Moment

The Bainbridge Island Police Department has arrested 26-year-old teacher Jessica Fuchs for illegal sexual conduct with a 16-year-old sophomore (based on the charges, the student was likely 16 when all incidents occurred). I blogged about this case here. Inside Bainbridge has several articles regarding the case and the arrest. Bainbridge Islander also has articles as does the Kitsap Sun.

According to Inside Bainbridge she was charged with Sexual Misconduct with a Minor in the 1st Degree, a class C felony (RCW 9A.44.093, makes it a crime for a teacher to have sex with a student who is at least 16 years old, when the teacher is at least 60 months older than the student, a Class C felony is a maximum of 5 years in prison); Communication with a Minor for Immoral Purposes, a gross misdemeanor (maximum of 364 days), and Tampering with a Witness, also a Class C felony.  If the student had been 15 when some of the incidents occurred other criminal laws would have also applied regarding rape of child or molestation of a child.

Bainbridge Islander had an article in its May 15, 2015 publication. According to this article, Fuchs was arrested on May 7, 2015 after three months of investigation. School officials notified police of allegations of sexual misconduct, two days after the administrator interviewed Fuchs and placed her on administrative leave.

The purpose of this blog is to review the district’s policies and procedures in the wake of the possibility that a teacher has engaged in such shocking and abhorrent behavior. The focus of this inquiry is centered around how the School District can do better with regard to discrimination and harassment in our schools.

Through this analysis I also want to educate parents and students about the process of addressing concerns with the school/school district when students are experiencing discrimination or harassment in schools. This topic is a passion of mine and I’ve blogged about it a couple of times already (See: Parent Guide as Bainbridge Island School District Deals with Teacher’s Inappropriate ConductTitle IX, Harassment, Bullying, and Illegal ActsBack to School Basics on Harassment & Bullying in K-12 Public SchoolsHigh School teachers and coaches and sexual acts with studentsFederal Guidance on Title VI vs. OSPI WACsSurprise Rule Change from OSPIOSPI Nondiscrimination Guidelines for Trans* Studentsand so I will try to add new information to this blog.

Previously, I noted that I could not find the sexual harassment policies and procedures of the school district. I followed up at a School Board meeting and they have added their Sexual Harassment Policy and Procedure (Policy and Procedures 3700) to the Prevention of Harassment, Intimidation, and Bullying page. There is no link on the Nondiscrimination page, which is where I would look for the policy, but that’s probably because I’m a lawyer. I know that there is a legal difference between general bullying, harassment, and intimidation that happens and those that occur based on protected classes. When harassment and bullying is based on protected classes it triggers the nondiscrimination laws and schools have greater duties than they do when generalized bullying, harassment, or intimidation.

Let me preface the following critiques with an acknowledgment that school districts have an almost overwhelming number of requirements, policies, and procedures. It is also important to note that the School District called the police. This is perhaps one of the most important responses they made to this incident. As the Seattle Time 2003 expose demonstrated, calling the police when teachers and coaches engage in inappropriate sexual conduct with students or children has historically not happened. By calling the police, the School District was admitting that something bad had happened within the School District and it was an important step in addressing the issue.

Nevertheless, when something like this happens, it calls for more self-reflection. An examination should be performed about whether or not there ways to decrease the likelihood of something similar happening in the future. This need for an examination is especially important because it was only two yeas ago that BISD was found negligent in responding to the sexual harassment and bullying based on a student’s mental disability that occurred in 2007.

The first place to start would be in looking at the Policies and Procedures regarding sexual harassment, which are also a part of the broader ban of discrimination based on several protected classes, including but not limited to sex, race, creed, national origin, and disability.

The critiques I outline, while specific to BISD policies and procedures, are common weaknesses for schools. With that caveat, here are my critiques of the BISD sexual harassment Policy and Procedure.

(1) Perhaps one of the most problematic things about the policy & procedure is that they are inconsistent with each other. The policy has a complaint process that is different from the procedure. The policy was last revised on February 13, 2008. The procedure was revised on June 8, 2011, two years before the school district was found negligent in handling a sexual harassment incident.

(2) One of the biggest issues I have with the procedure is that it only requires the Title IX/Affirmative Action Officer to investigate written complaints. There is nothing in the entire procedure about how to handle informal complaints, observations, or verbal complaints. Beyond the requirement for it to be written complaint, it must be signed, set forth specific acts, conditions, or circumstances alleged to be in violation of the district’s obligation in regard to sexual harassment; and that it must be filed with the Title IX/Affirmative Action office within 30 days following the alleged violation.

This kind of procedure exposes the school district to liability. The school district has an affirmative responsibility to provide a discrimination-free learning environment. Failing to have a procedure for dealing with issues when someone wants to make the school aware of the issue, but doesn’t want to sign it (perhaps a student doesn’t want it known that she or he “snitched” on a friend) is a significant problem. For a contrast, look at Procedure 3706, which focuses on generalized bullying and harassment, this procedure has various ways to complain (anonymous, confidential, or full specific complaint).

This written complaint procedure is different from the policy. The policy has an informal complaint process. The policy then refers to the Procedure for formal complaint processes.

(3) The other persistent problem for schools is a failure to identify the contact person. Who is the Title IX/Affirmative Action Officer? There is no one listed in the Staff directory with this title. The Office of the Superintendent of Public Instruction Provides a list and according to this list it’s Peter Bang-Knudsen; his title per the school district website is “Superintendent, Assistant.” If a student or parent were trying to follow the procedures, they simply couldn’t based on information available within the School District’s own website.

(4) The appeals process requires that written notice of appeal be filed with the secretary of the Board of Directors. There is no information on the School District website that I can find about who the secretary of the Board of Directors is. The only positions that board members appear to hold are President or Vice President. I even opened up minutes and the minutes do not have an author/secretary listed. Again, anyone seeking to follow the Procedure would be unable to follow it based on information available on the School District’s website.

(5) Aside from the inconsistency with the Procedure, one of biggest problems with the Policy is that it does not specifically say that any sexual interaction from a teacher to a student is sexual harassment. A lot of sexual harassment law comes from the employment setting where everyone involved is an adult. In the employment context or student-on-student harassment, sexual harassment is required to be “unwelcome.” In the teacher-student context, the “unwelcome” requirement should not exist. Any sexual relationship between teachers and students is also a crime. The question should never turn on whether a student wanted the teacher’s advances. Even the most mature teenagers are still teenagers, and with the exception of some seniors, students are also minors. The power dynamic is so great that the sexual harassment policy should be clear that all teacher-student relationships fall into the category of sexual harassment, regardless of whether or not it was welcome.

(6) Timing. The timeline in the Procedure are actually one of the better components. It requires a response within 30 days. The problem is that just doesn’t seem to be happening. The School District describes its investigation as ongoing. It has been three months. It shouldn’t be ongoing. One of the the things schools often do is put their own investigations and responses on hold while police do their investigations. This isn’t proper. Schools and our criminal justice system have different responsibilities. Criminal law requires beyond a reasonable doubt, but in the civil context (i.e., non-criminal) it simply has to be more likely than not. The school will have to work with the teacher’s union contracts regarding disciplining a teacher, but it can and should act swiftly and independently from the criminal investigation.

These kinds of problems with procedures and policies are widespread and by no means unique to the BISD. Bans on sex discrimination, including sexual harassment, have existed for close to 40 years. Despite this, school districts across the nation have poor policies and procedures. The WSSDA policies and procedures are not much better.

There is little guidance for schools on how to handle sexual harassment concerns when they arise. When the Office of Civil Rights (“OCR”) gets involved they often advise schools to create better policies and procedures, but OCR doesn’t have any kind of best practices.

In the meantime, when students and parents are concerned about issues, they are left with mess of information that is often contradictory. Here on Bainbridge Island, as of 2015, if there is a concern, then Peter Bang-Knudsen is the person to take the concern to. Since he is listed as the compliance officer as well as the Title IX officer, that means any issue of discrimination based on a protected class (race, gender, national origin, sexual orientation, etc.) go to him.

Any time any kind of bullying, harassment, or intimidate occurs based on a protected class, not only does the individual case need to be looked into, but the school district also has a responsibility to determine whether are culture/climate exists that contributes to the issues. The poor policies and procedures creates the inference that yes, this is the case. Because people who may have known that something was happening simply wouldn’t have had any idea who to turn to.

What happens in the wake of this issue will also matter. Does the School District host speakers, assemblies, etc. to discuss sexual harassment and make sure students are aware of the polices and procedures (hopefully revised)? Does the School District work to make sure that there is no room in the school district for sexual harassment or discrimination of any kind?

These are the kind of things that the school district must do in addition to addressing the actual issue. The school district has to use moments like this to interrupt a culture that may exist that allows this kind of behavior. They need to make sure that students and parents are all aware of who to turn to and how to turn to them, so that when they suspect that something inappropriate is happening that they can tell someone with authority and knowledge on handling the situation.  It is the responsibility of the school to turn this incident into a learning moment.