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Sunday, April 1, 2007 - Page updated at 12:00 AM

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Inside the Times | Mike Fancher

Court can pull back schools' veil of secrecy

Seattle Times editor-at-large

A five-year Seattle Times fight for information about sexual misconduct in schools is in its final phase. We hope the Washington Supreme Court will speak clearly for openness.

In December 2002, reporters for The Times filed their first requests asking 10 school districts for records about teachers and coaches accused of sexual misconduct. After a year of investigation, The Times published "Coaches Who Prey," which identified nearly 100 men who continued to coach or teach after being fired or reprimanded for sexual misconduct. The series of articles prompted immediate, significant changes to protect students. The state Legislature, the superintendent of public instruction and the Amateur Athletic Union all responded with reforms. The series put parents on notice of what to watch for in safeguarding their children from coaches who prey.

This landmark series was possible because state law seemed clear that misconduct records are public and because most school districts responded openly. But some districts, notably Bellevue, and the Washington Education Association (WEA), the state teachers union, sought to thwart access.

The WEA mounted a legal campaign to prevent The Times from getting records, arguing that release of the information would invade the teachers' privacy. The newspaper ended up fighting court battles in four counties, a state Court of Appeals and the Supreme Court, at a cost of hundreds of thousands of dollars in legal fees.

The WEA sought injunctions to protect the identities of dozens of teachers, including some who hadn't been consulted and one who was dead. The teachers were identified by names such as "Bellevue John Doe 10." The argument was made that their names should not be revealed because the allegations against them did not result in discipline.

The state Public Records Act makes clear that all public records and documents are available to the public unless specifically exempted in the act itself. One exemption concerns the private information of public employees when the information is not of legitimate concern to the public.

The WEA argued that unsubstantiated allegations of sexual misconduct are exempt from disclosure, and that the public has no legitimate interest in allegations of misconduct unless the government agency takes a formal action beyond what is called a "letter of direction," which the union contended isn't discipline.

The Times argued that the on-the-job conduct of a public employee is not a private matter. It also argued that investigations of sexual misconduct involving teachers and children are of legitimate public interest, and that what the school knows about allegations of misconduct should be disclosed.

On the surface, the WEA argument seems reasonable. There is a question of fairness in releasing the name of someone who is accused if the accusation isn't substantiated. But there is more to the story that turns the argument on its head.

One pattern revealed by our investigation was that charges would be left as unsubstantiated and secret if the accused coach agreed to leave the school district. After facing credible allegations or possible discipline, the coaches would get a job in another district or a private athletic club where their misbehavior wasn't known to officials. In at least one instance, a coach was paid to quietly leave his district before going elsewhere to molest more girls.

The Times subsequently learned there were issues even among some of the teachers originally represented by the WEA in the lawsuit. Although they were described as people with no school discipline imposed against them, six had been allowed to close the school's investigation by resigning. Two of those were later criminally convicted of sexual offenses. Another was presented with a letter of probable cause saying he forced his way into a student's house at night and had sex with her, but was allowed to resign and not tell his next employer.

Those individuals were dropped from the WEA case as it was appealed.

In October 2005, a state Court of Appeals ruled unanimously that the public has the right to know the identity of teachers accused of sexual misconduct except when charges are "patently false." The decision said "false" is not the same as "unsubstantiated."

Appeals Judge Mary Kay Becker wrote that "school districts must disclose the names of teachers who have been accused of misconduct of a sexual nature, even when the districts have concluded after investigation that the allegations are unsubstantiated or too minor to justify discipline."

The decision said "if a teacher's record includes a number of complaints found to be 'unsubstantiated,' the pattern is more troubling than each individual complaint. Yet, if the teacher's name in each individual complaint is withheld from public disclosure, the public will not be able to see any troubling pattern that might emerge."

Now that ruling is being reviewed by the state Supreme Court, which heard oral arguments recently. The WEA attorney argued that the public has to trust that government is going to do its job. But our reporting showed clearly that such trust wasn't warranted. The heart of the Public Records Act isn't that the public must trust government, but that government must be open to scrutiny.

Under the ruling sought by the WEA, The Times would have had no way to know if a teacher was the subject of several complaints or to track an individual from one district to another. We would not have been able to tell this story fully. The reforms that have resulted wouldn't have occurred.

In the end, this wasn't a story just about the misconduct of individual men against the girls they coached. It was a story about how the system of oversight enabled those men to continue to molest children.

Without openness, The Times could have reported only the cases where the system worked. We couldn't have known that in many instances the system not only didn't work, it operated as a shield to protect coaches who prey.

Inside The Times appears in the Sunday Seattle Times. If you have a comment on news coverage, write to Michael R. Fancher, P.O. Box 70, Seattle, WA 98111, call 206-464-3310 or send e-mail to mfancher@seattletimes.com. More columns at www.seattletimes.com/columnists

Copyright © 2007 The Seattle Times Company

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