But she was 18! It was consensual!! She was not my student!!!

I remember listening in on talk radio about a year ago and finding, to my surprise, that the radio host was staunchly defending a teacher’s right to have sex with a student…but only under the right circumstances. The circumstances were that 1) the student did not attend the school where the teacher taught; 2) they met entirely away from any school-sponsored activity, through a private martial arts course that the teacher ran; 3) the student was legally an adult—18 years old; and 4) the relationship was completely consensual.  The argument was that these two adults would be free to pursue a sexual relationship under any other circumstances. Why should the young woman’s status as a high school student change that?

According to the State Board for Educator Certification the student’s status as a high school student was a game changer. SBEC permanently revoked the man’s teaching certificate based on its conclusion that he had violated the Code of Ethics. At that time, the Code prohibited educators from having a sexual or romantic relationship with “a student.” But the term “student” was not defined. The man argued that the term did not include someone that he met privately when not “wearing his educator hat.”  The radio host seemed to agree with that. More importantly, so did Travis County Judge Gisela Triana. She overturned SBEC’s decision.

SBEC appealed that decision to the Court of Appeals, which ruled in favor of SBEC, thus resulting in the revocation of the teacher’s certificate.  The court noted that the term “a student” should be interpreted in its ordinary usage, and thus would include any person who was attending any Texas public school.  The case is SBEC v. Lange, decided by the Austin Court of Appeals on February 25, 2016.  You can find it at 2016 WL 785538.

It was probably in response to this case that SBEC amended the rules to define “student.”  Here is the current definition:

Student—a person enrolled in a primary or secondary school, whether public, private, or charter, regardless of the person’s age, or a person 18 years of age or younger who is eligible to be enrolled in a primary or secondary school, whether public, private, or charter.  19 T.A.C. 249.3(54).

Keep in mind that this is the SBEC rule. Violation of it can result in a revocation of certificate. The criminal law is a bit different.  Consensual sexual activity between a teacher and an adult  student is a crime only if the student attends a school in the same school district as the teacher, or the student participated in a school-sponsored extracurricular activity in which the teacher provided services.  Texas Penal Code 21.12(a).

Thus if Teacher Jones, who works in District A, has a consensual sexual encounter with an 18-year old who attends high school in District B, and they did not have contact with each other through a school-sponsored activity, Teacher Jones has committed no crime.  However, Jones stands to lose a valuable teaching certificate.  And we want to make it clear that the Dawg is not encouraging such relationships!  Just ‘splaining the law here. That’s what we do.


Should the principal be held to a higher standard?

You should take a look at the new rules proposed by SBEC pertaining to disciplinary action.  If adopted, these rules would impose a higher standard on administrators than teachers.  Here is the key paragraph:

Administrators, who hold Superintendent, Principal or Mid-Management Administrator certificates issued by the SBEC, have as a result of their actual or potential positions of authority over students and other educators an even greater obligation to maintain good moral character than teachers and paraprofessionals. When an administrator’s conduct demonstrates that the administrator lacks good moral character, is a negative role model to students, or does not possess the moral fitness necessary to be a certified educator as described in subparagraph (D) of this paragraph, the administrator may be subject to greater sanction than a teacher or paraprofessional would receive for the same conduct. 19 T.A.C. 249.5(b)(2)(G), proposed.

In plain language, that means that a principal and a teacher who engage in the same misconduct may be disciplined in different ways, with the harsher penalty falling on the principal.

The proposed rules also include a set of “mandatory minimum” penalties for various infractions, ranging from contract abandonment to felony-level conduct.

You should take a look.


The comment period on these proposed rules runs until February 1.  Comments can be sent to sbecrules@tea.texas.gov.