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Wash. Supreme Court protects accused teachers

Richard Roesler
Staff writer
August 1, 2008

OLYMPIA – In a case where the 11 petitioners are all known as John Doe, the state Supreme Court ruled 6-3 Thursday that unsubstantiated allegations of teacher sexual misconduct can be withheld from the public.

“Sexual abuse of children by school teachers is a terrible atrocity,” Justice Mary Fairhurst wrote. School districts should investigate complaints thoroughly, she said. If substantiated, she said, the teacher’s identity can be released.

But if the investigation doesn’t substantiate misconduct, she wrote, quoting a lower court ruling, disclosing the teachers’ names “serves no interest other than gossip and sensation.”

In a lengthy dissent, Justice Barbara Madsen blasted the ruling, saying that students are reluctant to report abuse, school district investigations are often inadequate, and that the secrecy allowed by the court’s ruling is likely to foster abuse of children in schools.

“It is important to bear in mind that unsubstantiated does not mean untrue,” Madsen wrote.

Toby Nixon, president of the Washington Coalition for Open Government, also criticized the ruling.

“School districts often hide evidence of patterns of misbehavior by teachers, coaches and staff to avoid lawsuits,” he said. “It’s one thing to expunge allegations shown to be false from a teacher’s record, but we know from sad experience that where there’s smoke, there’s usually fire.”

The court also ruled Thursday that “letters of direction” – official memos intended to guide a teacher’s future behavior – can be released to the public. But if it doesn’t mention misconduct and the teacher hasn’t been disciplined, the court said, the teacher’s name and identifying information “must” be blacked out.

The case was brought by 15 school teachers who wanted to prevent their districts from releasing their names in response to a public-records request by the Seattle Times. A 2003 investigative project by the newspaper found 159 coaches in Washington who were disciplined for sexual misconduct ranging from harassment to rape. The Times report found that school districts often failed to investigate complaints against coaches, and didn’t report them to law enforcement or the state education office.

Attorney Tyler Firkins, who represented the teachers, said the ruling doesn’t prevent newspapers from doing investigations like the Times did. He said this case was solely about making sure innocent teachers didn’t get their names associated with false allegations.

Especially for teachers who work with students with behavioral problems, the outcome could have led to fewer teachers willing to teach challenging children, he said.

The high court ruled Thursday that identifying teachers in unsubstantiated cases violates the teachers’ right to privacy.

“The mere fact of the allegation of sexual misconduct toward a minor may hold the teacher up to hatred and ridicule in the community, without any evidence that such misconduct ever occurred,” Fairhurst wrote. Keeping names and identifying information secret, she said, “will not impede the public’s ability to oversee school districts’ investigations of alleged teacher misconduct.”

A lower court had ruled that the information should be disclosed in cases where school districts’ investigations were insufficient.

But a person’s privacy rights shouldn’t hinge on how good an investigation their employer does, Fairhurst said. And she said the public can still see investigation records – minus any identifying information.

In her dissent, Madsen took the unusual step of bringing in outside statistics to suggest that the court’s making a big mistake. She cited a 2004 U.S. Department of Education report suggesting that 9.6 percent of student in grades 8 to 11 experience teacher sexual misconduct of some type.

Sex abuse of children is already hard to substantiate, because the adult and the child often are the only witnesses, she said. Students feel – often legitimately, according to another report she cited – that they won’t be believed.

Under Thursday’s ruling, Madsen said, Washingtonians also likely won’t be able to know if schools are doing a decent job of investigating complaints.

“But the most unfortunate consequence, and one that is completely unacceptable, is that if predatory teachers are undetected, children will continue to suffer at their hands,” she wrote. “I dissent.”Joining Madsen in dissenting were Justices Charles Johnson and Richard Sanders.

The court’s majority included Fairhurst, Chief Justice Gerry Alexander, and Justices Susan Owens, James Johnson and Bobbe Bridge. Justice Tom Chambers also sided with the majority, but agreed “in result only,” with no further comment.

The Associated Press contributed to this report.

Richard Roesler can be reached at (360) 664-2598 or by e-mail at richr@spokesman.com.

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