Recommendations Regarding Touching Students


Touching children in the school setting has positive educational aspects.  However, touching children carries a risk that the educator may be accused of improper touching.  Thus, an educator must exercise conscious judgment in determining whether to touch students and under what circumstances.

To exercise good judgment regarding touching, the educator must consider several factors:


1)      Age of the child


a)   Kindergarten-second grade: It is virtually impossible to avoid touching students of this age in a classroom.  However, as students grow older, the acceptability of touching and hugging decreases.


b)    Middle Grades:  Female children are extremely conscious of their sexuality from grades four through nine.  The most numerous accusations of improper touching in the schools occur in this age group, who, according to one psychologist, are preoccupied with sexuality.  Females of this age are very sensitive regarding their breasts and often view a touch on their shoulder or back as sexual in nature.  Girls in this age group are also extremely sensitive regarding remarks about their clothing and physical appearance.  Typically, school employees get into trouble with this age group for patting knees, putting arms round shoulders, putting hands on waists, looking at me funny and snapping or rubbing bra straps.


c)    Higher grades:  Very little touching is acceptable with this age group.  Educators most often get into trouble with this group when they attempt to counsel trouble children, especially about sexual or romantic matters.  If it is not in you job description to counsel students, it is best not to do so.


2)      Educators Sex


a)   Males are perceived as sexual aggressors and almost all accusations are leveled against male educators.  Male educators must review their behavior very carefully to be certain it cannot be misinterpreted.


3)      Cultural/Personal Factors


a)   Some individuals and some cultures are very uncomfortable with any sort of touching.  Educators need to be sensitive to students individual and cultural preferences.


b)   If a student indicates by word or action that he/she is not comfortable with touching, the educator should avoid physical contact with that student unless such contact is absolutely necessary for safety reasons.


Some actions, even if not tainted with improper motive, are common trouble areas.  Such actions should be avoided when possible:


1)   Repeated one-to-one contact with an individual student.  For example, where a teacher assigns a single child (or even two children) to come early to the gym to help him set up for the days classes.  A better solution is to assign this privilege (chore) to two students, one male and one female, for a quarter, two other students should be selected in subsequent quarters.


2)   Social activities with students taking a student or two to the movies, inviting students to your home, visiting students while they baby-sit.  If you intend to use an out-of-school activity as a reward for behavior or academic performance, notify parents and your principal in writing well in advance of the educational purpose of the reward.


3)   Driving students in cars.  Students who are in cars with educators often say they were molested.


4)   Giving gifts to students.  If you wish to give gifts to reward students, discuss such gifts with the principal before they are given.  Never give a student an expensive gift or a personal gift such as perfume or flowers.  Notify parents and principal in writing of the reward system and its educational purpose.


5)   Writing cards, notes or letters to students.  Be particularly careful what is written in annuals.  Use professional, distant, name format, such as Thomas Brown, rather than Tom or Brownie.  Do not tell or write students that you love them.


Other actions will be grounds for discipline and are very difficult to explain:


1)    Any requests for affection: give me a hug, give me a kiss, etc.


2)   Any touching except on the shoulders, back and arms.  Even this is a dangerous with girls in grades four through nine.  Avoid lingering touches, such as shoulder massages.


3)   Requests for sex or dates.


4)   Any lascivious or sexual remarks of any sort, even those that are just jokes.


5)   Remarks about body parts you have great legs, I wish my wife was built like you, Im bigger than your boyfriend.  Remarks about appearance and dress are also questionable, (e.g. Youre a pretty girl, or You should wear that sweater more often.)


6)   Touching girls and boys in a different fashion.  For example, hugging girls but not boys.  Even if this is not sexual behavior, it is sexist behavior and may be grounds for discipline.


7)   Sexual contact with any student.  For certificated employees a student includes:


a)   Anyone currently supervised by the educational practitioner.


b)   Anyone currently under the age of 18 whom the educational practitioner has ever supervised.


c)   Anyone enrolled in any school or district served by the educational practitioner.


d)   Anyone enrolled in any school or district who is attending an activity at which the educational practitioner is performing duties.


This definition could also be imposed on classified employees.


8)   Sexual contact with a former student.  Wait at least a year after graduation, and be sure the student is 18 years old.  Even so, such contact with former students is dangerous to job security.


9)   Giving alcohol to students or former students under age 21.  Lending identification to underage students so they can obtain alcohol.



Dealing with Accusations of Child Abuse and other Misconduct


1)   Contact your UniServ representative immediately.  He/she can provide you with valuable advice and assistance.  Your UniServ representative can begin an investigation, help you determine if the matter is being treated as a criminal offense, refer you to an attorney and help you get Association representation during any meeting with administration, parents or complainants about the accusation.


2)   If adverse action (discharge, non-renewal, suspension without pay) is threatened, UniServ staff must be notified.  UniServ staff will decided when to call the WEA General Counsels office to obtain a WEA paid attorney.  Before a member consults the attorney assigned by the WEA General Counsel, the member, local leaders or UniServ staff must provide the assigned attorney with all of the information that they may have obtained from their investigation of the allegations.


3)   Local associations should devise a program at the beginning of each school year to provide support to members accused of misconduct:


a)   Emotional support educators accused of child abuse are devastated.  Members must support their colleagues in this situation.  Remember, in America, a person is innocent unless proven guilty.  Members must be encouraged not to treat an accused member as guilty.  This is the time for other member to be friendly and supportive.


b)   Technical support sometimes, educators are not good at controlling students without physical coercion.  The local can identify members with such weakness and provide assistance from master educators, so that the accused can learn better discipline techniques.  Ideally, such technical assistance should be offered before a member is accused of abuse.


c)   Rumor control a minor accusation, particularly one of sexual misconduct, often becomes exaggerated.  Once an allegation becomes public, the Association should be sure that the allegation is not exaggerated.


4)   You should immediately determine if the allegation is being treated as a criminal offense.  The safest course is to assume any child abuse allegation will be treated as a criminal offense.  Any allegation of sexual misconduct with a student is likely to be treated as a criminal offense.  Additionally, allegations concerning misuse of school district or student money may be treated criminally.  Sometimes allegations of drug and alcohol use, possession or distribution are also treated criminally.


5)   If there is any possibility that the allegation will be treated as a criminal offense, the accused person should contact an attorney who is experienced in criminal law immediately.


If the matter is being treated as a criminal offense, you should immediately talk to UniServ staff about whether you need a lawyer.  A lawyer may be needed to help you decide whether you should answer questions about the incident from the district, Child Protective Service (CPS) or the police.  The lawyer can advise you on whether to exert the Fifth Amendment privilege against self-incrimination.  WEAs Educators Employment Liability (EEL) insurance policy covers criminal cases, if you are ultimately found not guilty (if the matter involves corporal punishment, EEL will pay even if you are found guilty).  The insurance company does not pay attorneys fees until after the case is over.  Be sure you file an EEL claim as soon as possible.  Claim forms should be available at your UniServ office.  WEAs Legal Defense program does not cover criminal matters.


Be sure that the attorney that you counsel has a lot of recent criminal experience.  Before you enter a plea or make any admissions, your criminal attorney must talk to a WEA attorney about impact on employment rights.  Otherwise, ability to protect your job may be impaired.


6)   If there is any possibility that the allegation will be treated as a criminal offense, do not discuss the allegations with anyone except your attorney and current spouse.  Do not even deny or admit the allegations to anyone other than your spouse and attorney.


7)   Do not discuss the allegation with UniServ staff or local leaders, except to say:

a)      What the accusation is;

b)      who the accuser is;

c)      what action the district, parents, police, etc., have taken or indicated might be taken;   and,

d)      any witness to the incident and persons with whom you discussed the event.


8)   Do not resign even if you believe youve done something wrong, until youve talked to UniServ staff.


General Rules Regarding Disciplining Students


Laws and regulations concerning student discipline must be obeyed by school employees.  Corporal punishment is forbidden in Washington common schools.  Corporal punishment is defined by the Superintendent of Public Instruction as any act which willfully inflicts or willfully causes the infliction of physical pain on a student.  However, regulations permit the use of reasonable force by a school employee as necessary to maintain order or prevent harm to students, school staff or property.  Use of physical restraint or aversion therapy as part of an IEP is permitted.  RCW 28A.150.300, WAC 180-40-235.  Additionally, corporal punishment excludes the following:


1)   Physical pain or discomfort resulting from or caused by training for or participation in athletic competition or recreational activity voluntarily engaged in by a student; or


2)   Physical exertion shared by all students in a teacher directed class activity, which may be include, but is not limited to, physical education exercises, field trips or vocational education projects.


Discipline may be imposed on any student for violation of the rules of the school district.  A school district must adopt and publish a code of student conduct, identifying types of misconduct for which discipline, suspension and expulsion may be imposed. RCW 28A.600.010; WAC 180-40-225.  If the school administration refuses to adopt or enforce a code of student conduct, the local association must become active in organizing its members to resolve this problem.  A model code of conduct may be obtained from your UniServ office.


Generally school employees are required to act reasonably under all the facts of the specific situation.  State law defines the following acts as unreasonable: RCW 9A.16. 100


1)      Throwing, kicking, burning or cutting a child;

2)      Striking a child with a closed fist;

3)      Shaking a child under age three;

4)      Interfering with a childs breathing;

5)      Threatening a child with a deadly weapon; or

6)      Doing any other act that is likely to cause and which does cause bodily harm greater than  a transient pain or minor, temporary marks.


Other actions not on this list may also be found to constitute child abuse in some circumstances.


Disciplining special education students requires some additional consideration.  All students with disabilities are protected by Section 504 of the Rehabilitation Act.  Some Section 504 students also qualify for special education under the Individuals with Disabilities Education Act.


School employees may apply the same in-school disciplinary procedures to students with disabilities as they would any other student.  Those disciplinary procedures may include but not be limited to time-out, detention, use of study carrels or restriction of privileges.


For students with disabilities, behavior goals and disciplinary actions should be incorporated in the Section 504 accommodation plan or the IEP.  If a student is not making progress on such behavioral goals, then the teacher has the right to ask for a review of the students program and/or placement, to reconvene the IEP team.


Students with disabilities who are proposed for expulsion or suspension are entitled to additional due process.  However, a school district can get a court order allowing exclusion of a violent student with disabilities pending due process procedures.  Please note that this section does not always completely address the law governing the use or inflection of corporal punishment or physical discipline, and it does not adequately cover suspension or expulsion.  For additional information please contact your UniServ staff.


Reporting Child Abuse


Who must report

All professional school personnel, including teachers, counselors and nurses, are required to report any incidents which give the employee reasonable cause to believe that a child has suffered physical abuse, sexual abuse, sexual exploitation or negligent treatment.  A report to the proper law enforcement agency [the police or state patrol] or to the Department of Social and Health Services [child protect services] must be made at the first opportunity, but in no case longer than 48 hours after there is reasonable cause to believe that the child has suffered abuse or neglect.  Failure to make such a report is a gross misdemeanor.  RCW 26.44.030.  Reporting to school administrators or reporting anonymously does not satisfy the legal duty to report child abuse.


Although most classified employees are probably not covered by the mandatory reporting statue, it is still recommended that classified employees immediately report child abuse incidents to school administrators and then check later (within 48 hours) to see whether a report has been made to proper authorities.  If no report has been made, the employee should make the report.


Anyone who makes a good-faith report or who testifies concerning alleged child abuse or neglect in court will be immune from any liability that may arise from testifying or reporting, RCW 26.44.060, unless that person is convicted of, intentionally and in bad faith, knowingly making a false report of alleged abuse.


The legal definition of child abuse

Child abuse or neglect means injury, sexual abuse, sexual exploitation or negligent treatment or maltreatment of a child by anyone under circumstances that show that the childs heath, safety and welfare are harmed.  RCW 26.44.020(12).  A partial list of actions which constitute child abuse includes:


a)   Infliction of physical injury on a child by other than accidental means, causing death, disfigurement, skin bruising, impairment of physical or emotional health or loss or impairment of any bodily function, and/or


b)   Creating a substantial risk of physical harm to a childs bodily functioning, and/or


c)   Committing or allowing to be committed any sexual offense against a child as defined in the criminal code, or intentionally touching, either directly or through clothing, the genitals, anus or breast of a child for other than hygiene or child care purposes, and/or


d)   Committing acts which are cruel or inhumane regardless of observable injury.  Such acts may included, but are not limited to, instances of extreme discipline, demonstrating a disregard of the childs pain and/or mental suffering, and/or


e)   Assaulting or criminally mistreating a child as defined by the criminal code, and/or


f)    Failing to provide food, shelter, clothing, supervision or health care necessary to a childs heath or safety.


g)   Engaging in actions or omissions resulting in injury to, or creating a substantial risk to the physical or mental health or development of a child.


h)   Failing to take reasonable steps to prevent the occurrence of (a) through (g).


Reporting Abuse by Other Students


Incidents of child abuse in which the alleged perpetrator is another student or child must also be reported.  AGO 1987 No. 9.


How to report

Reporting is merely a request for an investigation into a suspected case of abuse.  You do not need to know the details of the possible abuse or be certain whether or not an indicator means abuse has taken place in order to report.  The reporting law specifies reporting when you have reasonable cause to believe that a child has suffered abuse or neglect.


Reports of suspected child abuse will be investigated by Child Protective Services (CPS). RCW 26.44.020(16).  Part of the job of CPS is helping parents get the services that are available to build a better family relationship.  CPS takes as much time as possible to put parents in touch with organizations and people who can be of help.


Child Protective Services (CPS) toll free telephone number is 1-866-363-4276 and has a 24-hour answering service.  Reports should be telephoned in to CPS as early in the day as possible.  The report should be made prior to contacting the childs family.  It is the responsibility of the CPS worker to notify the family of the referral, unless assistance in doing so is requested by CPS.


When making a report to CPS or a law enforcement agency, you should include as much information as is available.  Include the childs name, address, birth date, parents names, address, home and work phones, the nature and extent of the suspected abuse, neglect, or injuries, any information on previous injuries or background data, and the identity of the alleged abuser (if known). RCW 26.44.040.  As the referent, you may call and check on the status of the case.  The social worker can share with you information that is not confidential.


Unless there are unusual or extenuating circumstances, CPS will ask that you not request confidentiality in making a report of suspected child abuse.  In most cases, the specific information the educator possesses is needed to make a specific complaint.  If court testimony is involved, the reporters identity will need to be disclosed.  If the parent does not know the reporter, much energy is often wasted on determining who made the report, rather than focusing on resolving the problem at hand


Handling Media and Public Attention


Public interest surrounding allegations that an educational employee has abused a student is very high and the media and community often become involved.


It is important to establish a positive climate through a credible and compassionate voice to the public.  Our major goal is to always let the community know (through the media) that members of the local association are concerned about the welfare of all students, while also being committed to ensuring that members are treated fairly.


The way we handle things in a crisis determines not only our public image, but can also affect the way future allegations are handled and perceived.  It also establishes our ability to positively affect the media in other situations.


UniServ staff should be contacted immediately upon learning of any accusation against a member.  Good internal association communication requires setting the proper tone, keeping rumors under control, and communicating within the ranks.


After an allegation becomes public (i.e., if the local newspaper publishes the information) the local association could send a note to local members.  Without revealing any confidential information, the basic factual information should be explained (who was charged, with what, how the association is proceeding, etc.).  Do not disclose the identity of the accusing students.  Everyone should be aware that certain information must remain confidential.  The association should focus on assuring due process for all accused members.  All members are vulnerable to false accusations and an accused member should be supported and protected from hasty judgments.


Tips for handling public attention

1.      Never mention the name of the student(s) who did the accusing.


2.      Acknowledge the seriousness of the event and put the association on the right side of the issue.


3.      If the association and/or the school district has conducted any training or provided any other positive programs aimed at helping education employees and/or students deal with the issue of sexual abuse, emphasize the success of those programs.  Sometimes, a negative issue can result in some positive publicity for the good things that are going on related to the issue of abuse.


4.      Avoid speculation by the media of deal cutting.  Always say you expect a full investigation and that all the members rights will be protected.


5.      Calm aggressive reports by remaining confidant and discussing the issue in generalities rather than specifics of the individual case.  When continually pressed to comment on the specific incident, continue to say, It isnt appropriate for me to talk about the details of the case that is still being reviewed.  That would be unfair to all the parties involved.


6.      Feel free to say I dont know if you dont  -  offer to try to get the answer (if it is not a question that involves confidential information) and get back to the reporter as soon as possible.


7.      Never go off the record or say no comment.  Anything you discuss should be on the table.  Since you are not discussing any specific circumstances pertaining to the individual case, and since it is your role to protect the accused and set a good example for everyone else to do the same, you will never have reason to go off the record.  Just tell the reporter you dont want to if he or she suggests it.


It is important not to encourage any media coverage.  Let them come to you.  The association president should be the only spokesperson.  He or she should not refuse to talk to the press.  That will only result in a statement appearing in the local press that says: the association president refused to comment.  Such statements have only negative connotations. If a reporter contacts a local president, emphasize that you are unable to talk about the specifics of the incident or the individual(s) involved, but you are able to discuss the associations viewpoint on such allegations in general.



Stress the following:

        Educational employees are vitally concerned about the welfare of all students. Because we have chosen to devote our professional lives to working with young people, we feel a special responsibility to help ensure that they are treated appropriately.


        We are also concerned that the American system of justice is upheld and that every individual is afforded his or her due process rights.


        Neither the association or the district is the judge, (Never speculate on guilt or allow a reporter to draw you into what ifs?)


        Any kind of abuse of any student by anyone is abhorrent, but add that a member is innocent unless (not until but unless) proven guilty.


        Educational employees can be highly vulnerable to false accusations because of their close association with students.


Certificate Discipline


The certificate of any teacher may be revoked or suspended by the Superintendent of Public Instruction.  Any school district or educational service district superintendent may initiate revocation and/or suspension of certification on the grounds of a lack of good moral character or personal fitness or acts of unprofessional conduct.  Violation of written contact, intemperance and any crime against the laws of the State of Washington also constitute grounds for revocation or suspension of a teaching certificate.  Revocation is mandatory for a guilty plea or conviction in a crime against a child.  RCW 28A.410.090.


Those who hold certificates are also subject to a continuing requirement of good moral character and personal fitness under WAC 180-86-014. WAC 180-06-013 defines good moral character as:


1.      No guilty plea or conviction in any state or country of any felony involving child abuse.


a.       Physical Neglect of a child.

b.      Physical injury or death of a child (except motor vehicle violations).

c.       Sexual exploitation of a child.

d.      Sexual offenses where a child is the victim.

e.       Promotion of child prostitution.

f.        Sale or purchase of a child.


2.      No conviction of any crime within the last 10 years, including motor vehicle violations, which would materially and substantially impair worthiness and ability to serve as a professional within the public and private schools of the state.  The following factors will be considered:


a.       Age and maturity and the time the criminal act was committed;

b.      Degree of culpability required for conviction, mitigating factors;

c.       Classification of crime and seriousness of harm to persons property;

d.      Criminal history and likelihood crime will be repeated;

e.       Permissibility of service as educator within terms or probation or parole;

f.        Proximity or remoteness in time of the prior criminal conviction;

g.       Evidence offered which would support good moral character and personal fitness;

h.       Effect on education profession;

i.         The certificate holder has the duty to provide evidence regarding the above factors.


3.      No Serious behavioral problem which endangers the educational welfare or personal safety or students, teachers, or other colleagues.


4.      No intentional practice within Washington with an expired, lapsed, surrendered or revoked certificate.


Various other regulations define Unprofessional conduct:


1.      WAC 180-87-050: misrepresentation or falsification in the course of professional practice.  This includes any deliberate misrepresentation, including the omission of a martial fact in:


a.       Statement of professional qualifications

b.      Application of recommendation for employment, promotion, certification, or endorsement

c.       Application or recommendation for college admission, scholarship, etc.

d.      Representation of completion or inservice or continuing education hours.

e.       Evaluations or grading of student or personnel

f.        Financial or compliance reports submitted to a government agency

g.       Information given to SPE in the course of an official inquiry re: good moral character, personal fitness or unprofessional conduct

h.       Information submitted in an investigation by police or CPS regarding school-related criminal activity


2.      WAC 180-87-060: disregard of recognized professional standards.  This means flagrant disregard or clear abandonment of generally recognized professional standards during:


a.       Assessment, treatment, instruction of students

b.      Employment or evaluation of personnel

c.       Management of money or property


3.      WAC 180-87-065: abandonment of contract is defined as permanent abandonment, without good cause, of employment contract, including extra curricular contract.


4.      WAC 180-87-070: unauthorized professional practices includes these acts if performed without good cause:


a.       Intentional employment of uncertified personnel.

b.      Assignment of any responsibility in nursing, physical therapy, or occupational therapy to one not licensed.

c.       Practice during suspension of certificate.

d.      Failure to obey agreement not to accept employment

e.       Failure to obey any condition of an order or decision.

f.        Good cause includes exigent circumstances to protect health, safety, general welfare of students.


5.      WAC 180-87-080: sexual misconduct with students.  Includes any sexually explicit act with a student.  WAC 180-87-040 defines a student as:


a.       Under supervision of educational practitioner, or

b.      Enrolled in any school or district served by educational practitioner, or

c.       Enrolled in any school or district while attending school related activity at which educational practitioner is performing professional duties, or

d.      Former student under 18 who has been under supervision of education practitioner.


6.      WAC 180-87-085: furnishing alcohol or controlled substances to students.


7.      WAC 180-87-090: improper remunerative conduct which is deliberate act requiring/pressuring students to buy anything from educational practitioner.


8.      WAC 180-87-095: failure to file complaint by superintendent, ESD superintendent, when (WAC 180-86-110) superintendent or ESD superintendent has sufficient reliable information to believe that school employee is not of good moral character, or personally fit, or has committed an act of unprofessional conduct, such superintendent within reasonable period of time: shall file written complaint with SPI.  If considering discharge, need not file complaint until 10 days after issuance of notice of discharge.


9.      WAC 180-87-055: use of alcohol or controlled substances is unprofessional conduct under these circumstances:


a.       Acting under the influence on school premises or during a school-sponsored activity following:

        Notice by employer of concern regarding alcohol or substance abuse affecting job performance

        Employer recommendation to seek counseling

        Reasonable opportunity to obtain counseling


b.      Possession or use on school premises or at a school-sponsored activity of controlled substances without a prescription.


c.       Consumption of alcohol on school premises or at a school-sponsored activity involving student if contrary to district or building policy.



Bargaining Proposal


Complaint procedure Contact your UniServ staff for additional information and bargaining language.


1.1        Procedural Requirement

Any complaints regarding an employee made to any member of the administration by any parent, student or other person shall be processed according to the procedure outlined below.


1.2        Meeting with Principal or Immediate Superior

The principle or immediate superior shall meet with the employee to apprise the employee of the full nature of the complaint and they shall attempt to resolve the matter informally.


1.3        Right to Representation

The employee shall have the right to be represented by the Association at any meetings or conferences regarding such complaint.


1.4        Procedure

Step 1 In the event a complaint is unresolved to the satisfaction of the employee, the employee may request a conference with the complainant to attempt to resolve the complaint.  If the complaint is unresolved as a result of such conference, or if no mutually acceptable conference can be agreed on, the complaint shall move to Step 2.


Step 2 Any complaint unresolved under Step 1, at the request of the employee, shall be reviewed by the building principal or counterpart supervisor in an attempt to resolve the matter to the satisfaction of all parties concerned.


Step 3 Any complaint unresolved at Step 2 may be submitted in writing by the employee to the building principal or counterpart supervisor who shall forthwith forward a copy to the superintendent or designee and the complainant.


Step 4 Upon receipt of the written complaint, the superintendent or designee shall confer with all parties.  The employee shall have the right to be present at all meetings of the superintendent or designee and the complainant.


Step 5 If the superintendent or designee is unable to resolve a complaint to the satisfaction of the employee s/he shall forward the results of his/her recommendation, in writing, to the Board and a copy to all parties concerned.


Step 6 After receipt of the findings and recommendations of the superintendent or designee, and before action thereon, the Board shall afford the employee the opportunity to meet with the Board and show cause why the recommendations of the superintendent or designee should not be followed.  Copies of the action taken by the Board shall be forwarded to all parties.


Step 7 Any complaint unresolved under Step 6 may be submitted by the employee to the grievance procedure as set forth in this Agreement and shall commence at Level 3.