July 4, 2017
RE: Senate Bill 7 Relating to Improper Relationships Between
Educators and Students
Dear
School Administrators:
On May 26, 2017, Governor Greg Abbott signed Senate Bill 7
(SB7) into law. Notably, SB7 amends the Education Code and makes various
conforming amendments to provisions in the Code of Criminal Procedure,
Government Code and Penal Code. Importantly, SB7 amends and adds to existing laws
relating to improper relationships between educators and students. These
amendments have potentially adverse consequences for various administrative and
other personnel beyond the superintendent. In this advisory we discuss the more
significant changes to existing law and how SB7 will affect your school.
Amendments to Education Code
Through SB7 the Texas Legislature amended Sections 21.006,
21.044, 21.054, 21.058, 21.062, 21.355 and 39.057 of the Tex. Ed. Code and added
Sections 21.0581, 21.0061, 21.009 and 38.027 to the Tex. Ed. Code. Notably, the
Legislature added the following requirements to state law.
(1) Pursuant
to §21.0581, the State Board of Educator Certification (SBEC) may suspend or
revoke an educator’s certification, impose other sanctions against the educator,
or refuse to issue a certificate if the educator assists another person in
obtaining employment at a school district or open-enrollment charter school and
the certificate holder knew that the other person has previously engaged in
sexual misconduct with a minor or student in violation of the law.[1]
Additionally, the commissioner of education may require a school district to
revoke or decline to issue a teaching permit issued to or requested by a person
subject to an action by SBEC under §21.0581.
(2) Pursuant
to §21.0061, the board of trustees or other governing body is required to adopt
a policy for providing a notice to the parent or guardian of a student with
whom an educator is alleged to have engaged in an abusive or unlawful misconduct
or to have been involved romantically or sexually.
Through the policy, the board must require that the notice:
Through the policy, the board must require that the notice:
(a)
Be provided as soon as feasible after the
employing entity becomes aware that alleged misconduct may have occurred; and
(b)
Inform the parent or guardian:
(i)
that the alleged misconduct occurred;
(ii)
whether the educator was terminated following an
investigation of the alleged misconduct or resigned before completion of the
investigation; and
(iii)
whether a report was submitted to SBEC
concerning the alleged misconduct.
(3) Pursuant
to §21.009, individuals seeking the following types of employment are required
to submit a pre-employment affidavit[2]
disclosing whether the applicant has ever been charged with, adjudicated for,
or convicted of having an inappropriate relationship with a minor.
Administrator
Associate school psychologist
Audiologist
Counselor
Educational aide
Educational diagnostician
Librarian
Licensed professional counselor
Marriage and family therapist
Nurse
Occupational therapist
Physical therapist
Physician
School counselor
School psychologist
Social worker
Speech language pathologist
Teacher
Teacher intern or teacher trainee
In the event that an applicant
discloses that they were charged with, adjudicated for, or convicted of having
an inappropriate relationship with a minor, the applicant must also disclose
all relevant facts pertaining to the charge, adjudication, or conviction,
including, for a charge, whether the charge was determined to be true or false.[3]
If the applicant fails to disclose any required information, the school may use
this fact as grounds for termination of employment.
Importantly, under §21.009, SBEC may
revoke an administrator’s certification if SBEC determines it is reasonable to
believe that the administrator employed an applicant for any of the positions identified
above despite being aware that the applicant had been adjudicated for or
convicted of having an inappropriate relationship with a minor.
(4) Pursuant
to §38.027, school districts[4]
are required to adopt a written policy concerning electronic communications[5]
between an employee and a student that:
(a)
Includes provisions designed to prevent improper
electronic communications between an employee and a student;
(b)
Allows an employee to elect to not disclose to
students the employee ’s personal telephone number or e-mail address; and
(c)
Includes provisions instructing an employee
about the proper method for notifying appropriate local administrators about an
incident in which a student engages in improper communications with the
employee.
In addition to the new sections of law identified above, the
85th Texas Legislature amended various existing statutes. Significantly, the
following laws were changed to include additional and clarifying statutory
language.
(5) As
amended, §21.006 requires the superintendent (or equivalent) to notify SBEC when
an educator’s employment is terminated and there is evidence that the educator
abused or otherwise committed an unlawful act with a minor or was involved in a
romantic relationship with or solicited or engaged in sexual contact with a
student or minor. Additionally, the superintendent (or equivalent) is required
to complete an investigation of an educator that involves evidence that the
educator may have engaged in the misconduct described above, even if the
educator resigns. Whereas before the standard was that the notification to SBEC
and the completion of the investigation was to be based on evidence of educator
misconduct, now the standard has been lowered to the existence of evidence of
educator misconduct. In other words, if evidence (e.g., outcry by student)
exists that an educator abused or otherwise committed an unlawful act with a
minor or was involved in a romantic relationship with or solicited or engaged
in sexual contact with a student or minor, the superintendent (or equivalent)
must notify SBEC and complete the investigation of the alleged educator’s
misconduct.
Under prior law, campus principals
did not have a role in the requirements described above. However, under §21.006,
as amended by SB7, a principal is now required to notify the superintendent of
an allegation of educator misconduct.
As amended, §21.006 applies immunity
from civil or criminal liability to superintendents and principals who in good
faith and while acting in an official capacity report to SBEC or communicate
with other superintendents, directors, or principals concerning an educator’s
criminal record or alleged incident of misconduct.
Under SB7, SBEC is authorized to
apply sanctions, including the levy of an administrative penalty, in the event
that a superintendent or principal fails to provide the required notice. If an
administrative penalty is levied but not paid, SBEC is prohibited from renewing
the educator’s certifications until the penalty is paid. Moreover, a
superintendent or principal commits a state jail felony if he/she fails to
provide the required notice by the required date and if his/her failure
occurred with the intent to conceal an educator’s alleged misconduct.
As amended, §21.006 applies to
school districts, open-enrollment charter schools, districts of innovation,
regional education service centers and shared services arrangements.
(6) As
amended, §21.054 requires the continuing education for classroom teachers to
now include instructions regarding understanding appropriate relationships,
boundaries, and communications.
As amended, §21.054 now requires the
continuing education for principals to include instruction regarding
preventing, recognizing, and reporting any sexual conduct between an educator
and student that is prohibited under §21.12, Penal Code, or for which reporting
is required under §21.006 of the Education Code.
(7) As
amended, §21.355 allows a school district or charter school to provide an
educator’s evaluation to the Texas Education Agency (TEA). However, the
document would remain confidential.
(8) As
amended, §39.057 authorizes the commissioner of education to conduct a special
accreditation investigation of a school district or charter school when the
district or charter fails, for any reason, to provide to the TEA, upon request,
evidence or the investigative report relating to an educator being investigated
by SBEC.
The Legislature also made other conforming changes to the
Education Code through SB7.
Changes to Other Codes
Of significance, through SB7 the Texas Legislature amended
Section 21.12 of the Penal Code by clarifying that any employee serving in the
capacities identified above (see bullet (3)) are subject to the prohibition on
improper employee and student relationships, regardless of whether the employee
holds the required qualification (e.g., SBEC certification). Also, §21.12 is
amended to apply to any employee involved in an improper relationship with a
student who the employee knows is enrolled in any public or private primary or
secondary school.
The Legislature also amended Subchapter A, Chapter 824 of the
Government Code by adding §824.009 under which the Teacher Retirement System of
Texas (TRS) may revoke a person’s eligibility for full pension annuity payments
if: (a) the person is convicted of sexual misconduct or an improper
relationship with a minor student; (b) the offense arises from the person's
employment as an educator; or (c) the offense is punishable as a felony. If an
educator employed by a school district or charter school is convicted of an offense
subject to the amendments of law adopted under SB7, the district or charter
must notify TRS of the conviction in writing.
The 85th Texas Legislature also made other conforming changes
to the Code of Criminal Procedure, Government Code and Penal Code through SB7.
Recommendations
School districts, open-enrollment charter schools, districts
of innovation, regional education service centers and shared services
arrangements should amend their board policies to address the new legal
requirements adopted under SB7 for electronic communications, parent or
guardian notifications, superintendent and principal reporting of educator
misconduct, and the completion of the investigation of alleged educator
misconduct. Additionally, board members and administrators should modify
existing policies and administrative procedures to include additional local
requirements to ensure that the various other legal requirements adopted under
SB7 are properly addressed. Lastly, central office and campus administrators
and staff should be properly trained on the new legal requirements adopted
under SB7 and the new board policies and administrative procedures adopted to
implement SB7.
Should you have questions concerning Senate Bill 7,
particularly amendments to local policy, procedure and the employee handbook,
please contact us.
Cordially,
Schulman, Lopez,
Hoffer & Adelstein, LLP
Joseph E. Hoffer
[1] This legal requirement does not apply to the routine
transmission of administrative and personnel files.
[2] The Texas Education Agency is required to adopt a standard form
for the pre-employment affidavit.
[3] An applicant is not precluded from employment for disclosing a
charge if, based on the information disclosed in the affidavit, the employing
entity determines that the charge was false.
[4] While §38.027 specifically applies to school districts, adopting
a §38.027 written electronic communications policy at a charter school will help
prevent improper communications between school employees and students.
[5] As defined under SB7, "electronic communication" means
any communication facilitated by the use of any electronic device, including a
telephone, cellular telephone, computer, computer network, personal data
assistant, or pager. The term includes e-mails, text messages, instant
messages, and any communications made through an Internet website, including a
social media website or a social networking website.
