Legislating to keep children safe at school: are sex offenders really worse than murderers?

• Author: Lewis, Sara J.
• Position: New York

INTRODUCTION

In recent years, the media has barraged the public with countless stories of teachers caught sexually assaulting their students, (1) sparking understandable alarm and outrage. In an effort to allay concerns and calm the frenzy, many states have passed legislation aimed at teacher-student sex abuse. (2) Most recently, in June 2008, the New York state legislature enacted a statute that requires the Education Commission to automatically and immediately revoke the teaching license and certification of any teacher convicted of a sex offense. (3) Several other states have passed similar measures. (4)

According to New York Senate Majority Leader Joseph Bruno, the New York statute is simply a matter of "commonsense." (5) New York Governor David Paterson described the statute as a necessary measure in "mak[ing] sure that sex offenders are not in a classroom setting that may put our children in harm's way." (6)

The New York statute is indeed "commonsense," insofar as it accomplishes three legitimate goals cited by the New York legislature as motivations for the statute. First, by revoking a teacher's license without delay upon conviction, the statute makes it less likely that another school district will fail to discover the prior conviction and unintentionally re-hire the convicted teacher. (7) Second, because it is often difficult to get a teaching certificate reinstated after a conviction, the statute limits the opportunity for recidivism. (8) Finally, and importantly, the statute improves upon prior New York law, which required the Education Commission to conduct a costly and time-consuming separate administrative hearing before revoking a teacher's credentials--even after the teacher was found guilty "beyond a reasonable doubt" with the stringent due process protections available in a criminal proceeding. (9)

Although the statute may be a matter of "commonsense," this Note proposes that it is not "commonsense" to limit the statute to sex offenses. Heightened media attention surrounding sex crimes, in combination with the general public perception that sex offenses are more heinous than other crimes, likely influenced the New York legislature to single out sex offenses for special treatment under the law. This Note argues that New York ought to expand the statute to provide for the automatic revocation of a teacher's license upon conviction, not only of sex offenses, but also of similarly serious crimes that put children at risk of psychological or physical harm. For example, a teacher should lose his or her teaching certificate automatically for crimes such as murder, assault or battery, and kidnapping.

1. LEGISLATIVE HISTORY AND PURPOSE

   The New York statute, which was introduced and sponsored in the Assembly by Ms. Cathy Nolan (Democrat, Queens) (10) and in the Senate by Mr. Stephen Saland (Republican, Poughkeepsie), (11) reflected a three-way agreement between the Assembly, the Senate, and the Governor. (12) On June 18, 2008, both the Assembly and the Senate passed the bill (AB 11500 and SB 8553), and less than one month later, Governor Paterson signed it. (13)

   The statute is straightforward: It automatically and immediately decertifies teachers and other educators who are convicted of any sex offense. (14) A "sex offense" is defined by the statute to include "an offense committed in any jurisdiction for which the offender is required to register as a sex offender in New York." (15) Logistically, in order to achieve its purpose, the statute requires district attorneys to promptly notify the State Education Department whenever a teacher is convicted of a sex offense as defined by the statute. (16) Then, the statute requires the State Education Department, once notified, to promptly revoke that convicted teacher's certification. (17)

   Legislative history and public statements by those who supported the law reveal at least three motivations for the statute, and, for the most part, the statute is effective in implementing those three legitimate motivations. First, New York legislators saw the statute as a necessary protection against the unintentional re-hiring of convicted sex offenders. (18) Many school districts fail to conduct thorough background checks before hiring a teacher, and a teacher's lack of a teaching license is presumably more likely to tip off the hiring district than the previous conviction alone. (19) This risk of re-hire is more than theoretical, since many schools have, in fact, hired previously convicted sex offenders without ever discovering the conviction. (20) These unknowing re-hires often lead to repeat offenses and consequent bad publicity for the school districts that hire previously convicted sex offenders without informing parents and other community members of the risk posed by such teachers. (21) Arguably, a school district may have legitimate reasons for wanting to hire a teacher despite a previous conviction for a sex offense. However, if the school district never discovers the previous conviction in the first place, it is incapable of making an informed decision that weighs the risk of re-offense and consequent public outrage with the possibility of the teacher's rehabilitation and positive contributions to the classroom. Moreover, at least according to several New York legislators, it is likely a rare case in which a school...