Reviews of Court Cases on PA Education Regulations & School Staff Misconducts
Special thanks to guest blogger Thomas W. Bailey, current attorney-at-law and retired social studies teacher, who provides Act 48 courses of continuing education in professional decision-making, analyzing educator ethics, the law, PA Code of Professional Practices and Conduct, and discussion and interpretation of sample fact scenarios based upon classroom dilemmas.
Previously, this blog site (category = ethics) has offered numerous articles on defining issues of morality, ethics, regulations, professional aspirations, codes of conduct and codes of ethics, teacher-student relationships and boundaries, confidentiality, mandatory reporting, and reviews by “mock juries” of educator misconduct case studies. For my PMEA music education colleagues, PCMEA members, and education majors and newcomers to the profession throughout the Commonwealth, one area that still needs to be addressed is a discussion on Pennsylvania case law. One essential question is applicable to ALL pre- and in-service educators across the country: Have you informed yourself about the structure of YOUR state’s three branches of government, laws governing school staff responsibilities, prohibitions, and discipline, specific codes of conduct and/or ethics, and the judicial review process and case law?
“Ignorantia juris non excusat.”(Ignorance of the law excuses not.)
Thomas Bailey has provided an outstanding resource for learning more about PA regulations, court decisions, and putting into practice the values of ethical decision making. Below is a glimpse of his court case blog. Please visit his website for more detailed information and to sign-up for online classes: https://twbaileylaw.com/.
PA Commonwealth Court Case – Music Teacher Charged with Immorality
A male high school instrumental instructor and band director, M.T., began a romantic relationship with a 10th grade female band student (Student) in 2001 while employed for a Pennsylvania school district (District). M.T. continued the relationship with the Student to include sexual acts during her junior and senior years. The Student testified several sexual acts occurred within the District’s band room and band room office ending in 2004 with her graduation. M.T. continued to contact the Student when she attended college. Her parents complained to the District of continual communication by M.T. while their daughter was in college. In July, 2004 the District gave a written reprimand to M.T. to cease contact with the Student. M.T. continued contacting the Student after the reprimand.
The Student subsequently broke off the relationship with M.T. in the Spring, 2005 and told her parents of their sexual relationship. The parents then contacted the District where M.T. was still employed.
In April, 2005, M.T. was suspended without pay by District based upon the parent complaint.
On November 7, 2007, the Pennsylvania Department of Education (PDE) filed a Notice of Charges with the Professional Standards & Practices Commission (Commission) and served a copy to M.T. Charges from the Educator Discipline Act (EDA) included immorality, negligence, intemperance, cruelty, incompetence, sexual abuse or exploitation, and violations of the Code of Professional Practice and Conduct for Educators (Code of Practices). The violations of the Code of Practices included provisions prohibiting the acceptance of gifts by teachers and prohibiting sexual conduct between a teacher and student. PDE also claimed that M.T. posed an immediate threat to the health, safety, and welfare of students and sought immediate suspension of his certificates.
The Commission appointed a Hearing Officer (HO) who heard three days of testimony from the Student, M.T. and others. M.T. was represented by counsel.
The HO’s recommendation to the Commission include his Findings of Fact and Conclusions of Law which determined PDE had met its burden of proof on all but two charges. The Hearing Officer’s recommendation did not find M.T. to have given a prohibited gift to Student and that he was not an immediate threat to students. M.T. filed many exceptions with the Commission. M.T. claimed the technical rules of admissibility of evidence apply during Commission hearings, that his alleged, immoral conduct was not testified to by third party witnesses and that PDE did not offer sufficient evidence of professional incompetence, among other exceptions. PDE asserted M.T. remained an imminent threat to students.
Upon review, the Commission denied M.T.’s exceptions, found him to be responsible on all charges except the gift and immediately revoked his teaching certificates.
Issues Before the Commonwealth Court
Do the technical rules of courtroom evidence apply during an EDA hearing?
What educator conduct constitutes immorality in a relationship with a student?
What educator conduct constitutes lack of professional competence for an educator engaged in a sexual relationship with a student?
Commonwealth Court’S Opinion
Technical rules of evidence followed in courtroom litigation do not apply to a Commission Hearing Officer. The strict rules of evidence practiced in Pennsylvania Common Pleas Courts and US District Courts are not followed. All relevant evidence of reasonably probative value may be received.
Sexual intercourse with a student inside the band room office constituted educator immorality. “Immorality is conduct which offends the morals of the Commonwealth and is a bad example to the youth whose ideals a professional educator or charter school staff member has a duty to foster and elevate.” Third party testimony to the immoral acts was not necessary. Immorality with a student violated EDA Section 9c(1).
M.T.’s professional competence in teaching kids did not appear to suffer during the sexual relationship with the student. Incompetency is a continuing or persistent mental or intellectual inability or incapacity to perform the services expected of a professional educator or a charter school staff member. Absence evidence of failure to prepare for class or uphold assigned duties, the educator was not proven by the preponderance of evidence presented to be incompetent in his actions. PDE failed to carry its burden to prove this Charge.
Immorality of educator student sexual relationship defined in detail. Criteria for professional incompetence explained as well as PDE’s burden of proof before the Commission. PDE must prove elements by preponderance of the evidence: over 50% of the evidence produced exhibits culpability. 2-25-21
M.T. v. PA Department of Education 56 A3d 1 (Pa. Commonwealth Court 2010)
M.T. pro se
Attorney Nicole Werner for Pennsylvania Department of Education
Additional Court Case Summaries on the Thomas Bailey Blog Site
It behooves us to learn more about Pennsylvania case law. Read and share these additional analyses They will enlighten you and may foster additional discussion with colleagues. Feel free to post your own comments on Thomas Bailey’s website.
Slater v. PDE & Professional Standards Commission: If an educator is arrested for new criminal charges alleging conduct which appears to pose a threat to the welfare of students, will their certificate immediately be suspended pending outcome of the new charges?
The final court judgment (Horosko v. Mt. Pleasant Township SD above) is one of the oldest, dating back to 1939, and may be considered the foundation and precedent for current PA school employee regulations and discipline, especially in the confirmation of the following quote from the PA Professional Standards and Practices Commission of the Pennsylvania Department of Education:
“Professional expectations do not always distinguish between teachers’ on or off-duty conduct. Accordingly, teachers must act in their private lives in a way that does not undermine their efficacy in the classroom, demean their employing school entity, or damage their position as a moral exemplars in the community.”
What you say or do, both inside and outside the classroom, can and will affect your teaching effectiveness, professional reputation, and school employment status! But, if it is ever needed, be sure to know and exercise your rights, obtain the advice of a competent attorney, and avail yourself of due process.
Teachers make as many as 1,500 decisions a day for their classes and students… that’s as many as four educational choices per minute for the average teacher given six hours of class time. Surprised? (Not if you are an educator!) Check out this corroborating research:
Of course it can be exhausting… and as fast as “things” happen, even mind-numbing at times!
What do educators rely on for guidance, a sort of internal “ethical compass” for making these decisions, many of which are snap judgments?
Teacher “chops” (professional experience)
Peer and administrative support
Personal moral code (derived from one’s life experiences and upbringing)
Aspirations, values, and beliefs generally agreed upon by educational practitioners
State’s code of conduct and other regulations, statutes, policies, and case law
Or all of the above?
At this juncture during my workshops on ethics, I usually quote Dr. Oliver Dreon, Assistant Professor and Coordinator of the Digital Learning Studio at Millersville University of Pennsylvania and one of the authors of the Educator Ethics and Conduct Tool Kit of the Pennsylvania Professional Standards and Practices Commission:
“From a decision-making standpoint, I tend to look at it from the perspective of Ethical Equilibrium (work by Troy Hutchings). Teachers weigh the moral (personal) dimensions with regulatory ones (the law) with the ethics of the profession… While focusing on consequences is important, I worry that teachers may interpret this to mean that as long as they don’t break the law, they can still be unprofessional and immoral.”
– Dr. Oliver Dreon
From college students participating in their first field observations to rookie teachers (and even veterans in the field), I recommend searching the term “ethics” on the website of your State Board of Education. In Pennsylvania, checkout the following:
Now enters probably the single most valuable document of our time, an all-encompassing philosophy for embracing the highest standards of what it means to be an ethical educator: the Model Code of Ethics for Educators (MCEE), developed under the leadership of the National Association of State Directors of Teacher Education and Certification (NASDTEC). With the collaboration of numerous development partners including the American Federation of Teachers, National Education Association, National Association of Elementary School Principals, National Association of Secondary School Principals, Council of Chief State School Officers, and American Association of Colleges of Teacher Education – to name a few – MCEE is comprised of five core principles (like spokes in a wheel – all with equal emphasis), 18 sections, and 86 standards.
“The purpose of the Model Code of Ethics for Educators (MCEE) is to serve as a shared ethical guide for future and current educators faced with the complexities of P-12 education. The code establishes principles for ethical best practice, mindfulness, self-reflection and decision-making, setting the groundwork for self-regulation and self-accountability. The establishment of this professional code of ethics by educators for educators honors the public trust and upholds the dignity of the profession.”
Although pre- and in-service training on both are essential, the differences between a “code of conduct” and a “code of ethics” are vast. Codes of conduct like the Code of Professional Practice and Conduct for Pennsylvania teachers are specific mandates and prohibitions that govern educator actions. A code of ethics is a set of principles that guide professional decision making, not necessarily issues of “right or wrong” (more shades of grey) nor defined in exact terms of law or policies. Codes of ethics are more open-ended, a selection of possible choices, usually depended on the context or circumstances of the situation.
“The interpretability of The Model Code of Ethics for Educators allows for robust professional discussions and targeted applications that are unique to every schooling community.”
The music teacher and administrator colleagues with whom I have been privileged to work for more than 40 years are highly dedicated and competent visionaries who focus on “making a difference” in the lives of their students, modeling “moral professionalism” and the highest ethical standards for their classes, schools, and communities, in support of maintaining the overall integrity of the profession.
However, let’s unpack some of “the wisdom” of MCEE as it addresses the rare “nay-sayers” and entrenched teacher attitudes, failing to understand “the difference between what you have a right to do and what is right to do…” (Potter Stewart) or “doing the right thing when no one else is watching – even when doing the wrong thing is legal” (Aldo Leopold).
Here are sample negative responses, MCEE “exemplars,” and proposed assimilations for thoughtful and interactive peer discussion. Bring these to your next staff meeting or workshop, and apply them to a few mock scenarios (like these from my past blog ).
Principle I: Responsibility to the Profession
The professional educator is aware that trust in the profession depends upon a level of professional conduct and responsibility that may be higher than required by law. This entails holding one and other educators to the same ethical standards.
“I didn’t know it was wrong…”
Section I, A, 1: Acknowledging that lack of awareness, knowledge, or understanding of the Code is not, in itself, a defense to a charge of unethical conduct;
My comment: The old adage, “ignorance of the law is no excuse for breaking it.” – Oliver Wendell Holmes
“What’s the problem? I didn’t break the law!
MCEE Section I, A, 5: Refraining from professional or personal activity that may lead to reducing one’s effectiveness within the school community;
My comment: Any on or off-duty conduct or inappropriate language that undermines a teacher’s efficacy in the classroom, damages his/her position as a “moral exemplar” in the community, or demeans the employing school entity may result in loss of job, suspension or revocation of license, and/or other disciplinary sanctions.
“I’m not a rat fink…”
MCEE Section I, B, 2: Maintaining fidelity to the Code by taking proactive steps when having reason to believe that another educator may be approaching or involved in an unethical compromising situation;
My comment: As a professional with “fiduciary” responsibilities, we must look out for the welfare of our students, proactively protecting them from harm by embracing all provisions of “mandatory reporting.”
“What’s in it for me?”
MCEE Section I, C, 3: Enhancing one’s professional effectiveness by staying current with ethical principles and decisions from relevant sources including professional organizations;
MCEE Section I, C, 4: Actively participating in educational and professional organizations and associations;
Principle II: Responsibility for Professional Competence
The professional educator is committed to the highest levels of professional and ethical practice, including demonstration of the knowledge, skills, and dispositions required for professional competence.
“What’s the big deal about standards?”
Section II, A, 1: Incorporating into one’s practice state and national standards, including those specific to one’s discipline;
“Not another ‘flavor-of-the-month’ in-service program!”
Section II, A, 5: Reflecting upon and assessing one’s professional skills, content knowledge, and competency on an ongoing basis;
Section II, A, 6: Committing to ongoing professional development
My comment: Always “raising the bar,” being a member of a “profession” (like medical personnel, counselors, attorneys, etc.) requires the loftiest benchmarks of self-regulation and assessment, ongoing training, retooling, and self-improvement plans, revision and enforcement of “best practices,” and application of 21st Century learning skills.
“I needed to give him credit?”
MCEE Section II, B, 1: Appropriately recognizing others’ work by citing data or materials from published, unpublished, or electronic sources when disseminating information;
My comment: Especially during this period of online/virtual/remote education brought on by COVID-19, we must reference the owners of intellectual property (including sheet music) that we use and abide by all copyright regulations. In general, it is always “best practice” to cite research or authorship “giving credit where credit is due!”
“I’m just a music teacher! Don’t ask me to do anything else!”
MCEE Section II, C, 2: Working to engage the school community to close achievement, opportunity, and attainment gaps;
My comment: We teach “the whole child,” not a specialty or specific content area! I believe our ultimate mission is to facilitate our students’ capacity and desire to learn, inspire self-direction and self-confidence, and foster future success in life.
Principle III: Responsibility to Students
The professional educator has a primary obligation to treat students with dignity and respect. The professional educator promotes the health, safety, and well being of students by establishing and maintaining appropriate verbal, physical, emotional, and social boundaries.
“It’s just a gift…”
MCEE Section III, A, 5: Considering the implication of accepting gifts from or giving gifts to students;
My comment: It is not appropriate to give a gift to a student lacking an educational purpose. In some cases, this may be defined as a “sexual misconduct.” It begs the larger question: “Do you ensure that all of your interactions with students serve an educational purpose and occur in a setting consistent with that purpose?” Also from the PA Professional Standards and Practices Commission: “Teachers should refrain from accepting gifts or favors that might impair or appear to impair professional judgment.”
“You should never touch a student!”
MCEE Section III, A, 6: Engaging in physical contact with students only when there is a clearly defined purpose that benefits the student and continually keeps the safety and well-being of the student in mind;
My comment: We were told this warning in methods classes. However, as I mentioned in a previous blog here, this “rule” has little support in research or common “best practices.” It has been my experience that on occasion, most elementary instrumental teachers assist their students in acquiring the correct playing posture and hand positions by using some (limited) physical contact. Consoling an upset student with a pat on the shoulder is not out-of-line either. The factors that may contribute to the moment being judged “okay” vs. “inappropriate” boil down to:
Length of time
Frequency or patterns of repetition
Comfort level of the student
Age level of the student
Happening in public
Who started it?
“My students are my friends!”
MCEE Section III, A, 7: Avoiding multiple relationships with students which might impair objectivity and increase the risk of harm to student learning or well-being or decrease educator effectiveness;
My comment: You cannot be their “friend.” You are their teacher, an authority figure that is looking out for them and doing what is necessary (“fiduciary” responsibilities) for their health and welfare… perhaps at times things they do not want you to do. Crossing the teacher/student boundary with familiarity, informality, and being their “confidant” or “friend” are more than just unprofessional acts – they can foster a dual relationship where roles are less defined, an ambiguity that may lead to additional inappropriate actions and educator misconduct.
“He’s weird…” or “He’s not one of us!”
MCEE Section III, B, 2: Respecting the dignity, worth, and uniqueness of each individual student including, but not limited to, actual and perceived gender, gender expression, gender identity, civil status, family status, sexual orientation, religion, age, disability, race, ethnicity, socio-economic status, and culture;
My comment: Check your prejudices and personal biases at the door. Being a teacher is all about sensitivity and caring of all individuals – students, parents, staff, etc. Embracing today’s focus on reprogramming community attitudes on “diversity,” an educator daily models the values of empathy, compassion, acceptance, and appreciation, not just settling with the “lower bar” of tolerance, allowance, and compliance!
“Wait ’til you hear what happened in class today!”
MCEE Section III, C, 1: Respecting the privacy of students and the need to hold in confidence certain forms of student communications, documents, or information obtained in the course of practice;
My comments: Gossiping about and “carrying tales” home or in the teachers’ room are serious breaches of the care and trust as well as your fiduciary responsibilities assigned to you on behalf of your students. As for “regulations,” your indiscretion may be a violation of your students’ confidentiality rights (“a federal crime” according to Family Educational Rights and Privacy Act, Grassley Amendment, Health Insurance Portability and Accountability Act, and Individuals with Disabilities Education Act). You are only permitted to share information about a student with another teacher, counselor, or administrator who is on a “needs-to-know” basis or is actively engaged in helping this student.
Principle IV: Responsibility to the School Community
The professional educator promotes positive relationships and effective interactions with members of the school community while maintaining professional boundaries.
“Don’t tell my parents!”
MCEE Section IV, A, 1: Communicating with parents/guardians in a timely and respectful manner that represents the students’ best interests;
My comment: I wish I had a nickel every time a student plead with me, “Don’t call my mom!” It is part of “moral professionalism,” your “code,” and good ethical standards to originate meaningful two-way dialogue, and if necessary, confront the parents of underachieving children. I also believe it goes on long way to nurture your relationships in the community if you notify parents when their kid has done something remarkable… “I caught him being good” or “The improvement has been extraordinary!”
“Did you hear what a staff member said about you… in front of the kids?”
MCEE Section IV, B, 1: Respecting colleagues as fellow professionals and maintaining civility when differences arise;
MCEE Section IV, B, 2: Resolving conflicts, whenever possible, privately and respectfully, and in accordance with district policy;
My comment: Before you bring up the matter with your supervisor or building administrator (which you have the right and even responsibility to do, especially if the students hear any improper speech first-hand or that the incidents rise to the level of bullying or aggressive behavior), first confirm the story. Talk to the unhappy team member one-on-one. Be calm and sensitive, but hold your ground: you must assert that his/her behavior/language is unacceptable and will not be tolerated in the future.
“Not another TEAM meeting?”
MCEE Section IV, B, 4: Collaborating with colleagues in a manner that supports academic achievement and related goals that promote the best interests of students;
My comment: We work together to insure that all educational goals are met. Open and interactive peer partnerships are helpful in the review, design, and application of new lessons, methods, media, and music.
“I was just teasing her…”
MCEE Section IV, B, 8: Working to ensure a workplace environment that is free from harassment.
My comment: Be extremely careful in the practice of any behavior or language of a kidding, sarcastic, cynical, or joking manner. It can be misinterpreted regardless of your intentions… and it can hurt someone’s feelings. And it is never appropriate or “professional” to “put down” another person.
“Don’t ask for permission… beg for forgiveness.”
MCEE Section IV, C, 3: Maintaining the highest professional standards of accuracy, honesty, and appropriate disclosure of information when representing the school or district within the community and in public communications;
My comment: Yes, I have heard this “view” a lot, advocates of whom will tell you to go ahead and stick your neck out to do something “for the good of the order,” and if needed later, “beg for forgiveness” if you decision is met with disapproval from administration. My advice? Less experienced teachers, run everything through your fellow colleagues (informally) and principal (formally). Don’t fall back on the lame “oops” and “beg for forgiveness.” I may have felt differently when I had three times as many years of experience under my belt than the supervisors who were assigned to “manage” me… but, even then, “venturing out without a paddle” usually did not serve the best interests of the students. There’s no reason to place “the teacher’s convenience” over the safety/welfare of the students. Besides, why not take advantage of the legal and political backup of your bosses if they are kept “in the loop?”
“He’s our preferred dealer and always takes care of us.”
MCEE Section IV, D, 4: Considering the implications of offering or accepting gifts and/or preferential treatment by vendors or an individual in a position of professional influence or power;
My comment: Formerly called “sweetheart deals” with music companies, you are on “shaky” ethical ground (and may also have “crossed the line” violating state laws/statutes) if you negotiate the rights of exclusive access to your school’s or booster’s purchasing. If you have any questions about your school’s policy on outside vendors, seek advice from your district’s business manager.
Principle V: Responsible and Ethical Use of Technology
The professional educator considers the impact of consuming, creating, distributing, and communicating information through all technologies. The ethical educator is vigilant to ensure appropriate boundaries of time, place, and role are maintained when using electronic communication.
“Isn’t use of social media forbidden?”
MCEE Section V, A, 1: Using social media responsibly, transparently, and primarily for purposes of teaching and learning per school and district policy. The professional educator considers the ramifications pf using social media and direct communications via technology on one’s interactions with students, colleagues, and the general public.
My comment: Professional educators’ use of a dedicated website or other social network application enables users to communicate with each other by posting information, comments, messages, images, etc. and “learn” together. However, using social media for sharing social interactions and personal relationships with your students, parents, and staff is unethical and dangerous. As they say, “a post (or snap) is forever.” Communicating digitally or electronically with students may lead to the blurring of appropriate teacher-student boundaries and create additional challenges to maintaining and protecting confidentiality.
The Final Word
In Pennsylvania (as well as the rest of the country), the statistics on school staff misconduct reports are rising alarmingly. Your own state’s “code of conduct” and the MCEE should help to clarify misunderstandings, but it has been my experience that the majority of educators do not receive regular collegiate, induction, or in-service training on educator ethics or moral professionalism. Luckily, we are fortunate to have access to many mock scenarios (see below) from state departments of education to review/discuss among ourselves common ethical conflicts and “conundrums” dealing with pedagogy, enforcement, resource allocation, relationships, and diversity. We all need to “refresh” our understanding of these issues from time to time and revisit “our codes” frequently to help “demagnetize” (and re-adjust) our decision-making compass.
Please peruse the ethics category of this blog-site for other articles and sample references below.