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Legal Opinions

A prescription for educator behavior

Trouble spots you should know about in the revised Educators’ Code of Ethics

by Paul Tapp, ATPE Member Legal Services Department managing attorney

ATPE is committed to ensuring that members are aware of the Educators’ Code of Ethics and how it and related disciplinary rules regulate the education profession. As previously reported in ATPE News and Essentials, the State Board for Educator Certification (SBEC) recently made changes to the code and the rules. Comments made during the revision process by the Texas Education Agency (TEA) staff members who developed the rule changes made it clear that the changes were intended to do two things: first, update the rules to incorporate changes in the education world, particularly regarding technology, and second, make it easier for TEA to prosecute educators that staff members felt had engaged in either inappropriate conduct that did not violate a specific standard/rule or conduct that was hard to prove.

ATPE staff members were deeply involved in the rule-making process and were able to convince the TEA staff and SBEC to make substantial improvements to the revisions that were first presented. However, the rule-making experience and the ongoing experience of the attorneys who represent ATPE members accused of wrongdoing suggest that both the TEA staff and SBEC feel pressured to prosecute and sanction educators for nearly any kind of rule infraction. As such, it is critical that all educators be aware of the rules; ignorance will certainly not be recognized as a defense, and not all prohibited conduct is immediately obvious. Here are a few of the most significant areas in which the code has changed.

Honesty about your past

Your certificate may be sanctioned if you intentionally or knowingly misrepresent a fact about your past employment history, criminal history or certification disciplinary record when applying for employment. Misrepresenting information on an application has, for some time, been grounds for employment termination and could have potentially led to certification discipline under previous general expectations of honesty. However, the creation of a specific obligation to be truthful on an application illustrates SBEC’s intention to make it easier to prosecute complaints.

Caution in communication

No issue has caused more debate than the new standards for educators who use technology to communicate with students. Inappropriate educator-student communication has, understandably, always been prohibited and a ground for sanction. SBEC has felt challenged recently by the advent of cell phones, e-mail, social media sites and, most of all, texting; these means provide more avenues for potentially inappropriate communication and, in the case of texting, often leave no evidence other than a phone record of when a text was sent.

Although young adults might think nothing of exchanging hundreds of texts in virtual conversations, TEA staff members have adamantly argued that texting is often evidence of “grooming” a student for a future inappropriate relationship. As such, the staff argued and SBEC accepted that a change in the rule was necessary—specifically providing that the nature, subject, purpose, timing or amount of communication could lead to a finding that the communication was inappropriate and warranted sanction.

Unjustified risk of student harm

It is an unfortunate fact of life that kids get hurt. Thankfully, most injuries are minor and result in nothing more than a life lesson for the student. As an educator, you are often in a position to either increase or reduce the risk of harm, both on the playground and in the classroom. SBEC has established a new rule that an educator may be sanctioned if it is found that the educator placed a student at an unjustified risk of injury, whether or not injury actually occurs.

As originally drafted by the TEA staff, the new rule would have simply prohibited placing a student at risk of injury. Obviously, every coach and chemistry teacher would have violated such a standard every day. At the urging of ATPE and other educator groups, the staff agreed that only creatingan unjustified risk should be subject to sanction. This rule is still highly subjective. What is enough justification? As an educator, if you are planning an activity, you need to carefully consider:

1. Whether any legitimate risk is involved;
2. If there is any way to make the activity less risky; and
3. If your ultimate goal justifies the risk.

As a real-life example, years ago an elementary school teacher decided that deep-frying letter-shaped doughnuts in her class would be a fun way to teach her young students their letters. Tragically, a student was badly burned when the deep fryer overturned in class. Although the teacher had the best of intentions and was and would still be immune from civil liability for the injury, it is highly possible that SBEC would, under this new rule, consider the risk unjustified under these circumstances. Were this to occur today, the teacher could face a complaint and sanctions.

Wine with dinner?

The rules also now prohibit an educator from consuming alcohol at a school event when children are present. An overnight field trip or University Interscholastic League (UIL) event would almost certainly be considered a school event, so that glass of wine or beer—even if it’s not shared with your kids—can get you into hot water. Stick to iced tea.

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