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By ERIC A. HOWALD
Of the Keizertimes
Recently-expanded mandatory reporting guidelines in the Salem-Keizer School District (SKSD) – that require teachers to report instances of consensual sex between students – prompted some students to question whether their free speech rights were being squelched.
Keizertimes asked University of Oregon School of Law Professor Leslie Harris to review the training materials given to teachers and explanations provided by the district for the changes. In her opinion, trampling free speech isn’t the primary concern.
“The advice (given to the district) is extreme protect-yourself-from-liability kind of advice that has extremely bad consequences for students and teachers, and particularly for young people in difficult situations who need help,” said Harris.
In addition to teaching, Harris is the author of widely-used textbooks on family law and children and the law. She also directs the Oregon Child Advocacy Project, which provides education and assistance to attorneys advocating for the interests of children.
Harris said that while students may feel their free speech rights are being impeded, the bigger issue is the district’s interpretation of Oregon’s child abuse reporting statute.
Prior to the changes, teachers were required to report cases of suspected abuse or neglect, but the new guidelines pushed out by the district expand reporting to include students talking about consensual sex, students asking about options for birth control for themselves, student pregnancy, and even in cases where students have been kicked out of their home by parents after sexual relationships are discovered.
“Oregon defines sex abuse in relation to certain criminal statutes, which not all states do. You have to have reasonable cause to believe that abuse as defined in one of those criminal statutes has occurred,” Harris said. “I can’t seriously imagine that either police or DHS (the Department of Human Services) upon receiving a report of a teenage consensual sex relationship are going to arrest them. That may be because I lack imagination, but you could do a lot of harm to a student by bringing charges and putting them through this process.”
Moreover, Oregon law provides exceptions for students within three years of age, also known as Romeo and Juliet laws. In the training materials, teachers are told that while age differences might be considered by police, DHS, or the district attorney when conducting an investigation, it does not apply to mandatory reporting.
“The slide says don’t worry about that, the district attorney will worry about that and I think that’s just wrong, you have to have reasonable cause to believe a crime was committed,” Harris said.
Harris also took issue with the district’s assertion that teachers are required to report when their own children talk with them about sex-related topics.
“Parents, even teacher-parents, have constitutional rights to teach their children and that certainly includes talking about sex. To suggest you have to report those conversations is incorrect,” Harris said. “I doubt very seriously that the legislature intended for parent-teachers to report their children. I doubt very seriously that the legislature intended for a kid who has been kicked out of his home by a parent to be turned in rather than the parent.”
Even if a parent gave their student permission to talk with teachers about the issues covered under the new guidelines, it wouldn’t protect teachers from the mandatory reporting requirements, Harris said.
In an interview last week, SKSD spokesperson Lillian Govus said it likely wasn’t intended for teachers to report conversations with their own children, but that it wasn’t up to the district to interpret the intent of the law.
“We just did the training because we believe it’s a clarification of the law and we’re not asking teachers to go out and find out if kids are having sexual intercourse,” said SKSD Superintendent Christy Perry.
Still, Harris contended that the effects of the new guidelines contradict accepted best practices.
“What is the sense in setting up a policy saying we don’t want children talking to teachers? It’s really, really sad and it’s contrary to what everyone says would be best practices. The teachers are in the position of having this edict. Even if they are willing to defy it, it will have chilling effect on the students,” Harris said.
She saw the free speech angle as something of a red herring, but added that the courts have frequently found that children have the same speech and privacy rights as adults, but that the “contours and boundaries” are different depending on the situation.
She said it would be hard for teachers or students to fight the new guidelines in a one-on-one basis, but that a larger entity could seek additional clarification of the mandatory reporting guidelines.
“An organization like the teacher’s union could ask the attorney general’s office for an opinion on this,” Harris said.
Keizertimes contacted the president of the Salem Keizer Education Association, the teachers’ union, regarding whether the union planned to address this issue in upcoming meetings, or if it had any comment on the new policy. No response was received by press time.