Commentary Law and Policy

Arkansas Court Says Teacher-Student Relationships OK after 18

Martha Kempner

The Arkansas Supreme Court recently over-ruled a law prohibiting teachers from having sex with students over 18. With this decision, age once again takes center stage when the more important questions are about the relationship itself.

Earlier this week, we published a piece about age of consent laws, those rules that criminalize voluntary sexual acts involving a minor which would otherwise be legal if not for the age of one or more of the participants. Each state has its own law about the circumstances under which young people can consent to sexual activity—some focus on the age of the potential “victim,” others the age of the “perpetrator,” and others the age difference between the two.  But what no laws seems to be able to do is distinguish between exploitative and consensual relationships between young people.  As such, these laws are open to misinterpretation and abuse which is evident in cases that send 18-year-old boys to prison and put their names on sex registries alongside serial rapists and pedophiles for having consensual sex with their 15-year-old girlfriends.

The article questioned whether we should really treat teenagers who have sex with other teenagers as criminals, if our legal system should play any role in regulating “consensual” teen sexual behavior, and if there are ways to protect teens from exploitation without making them vulnerable to unnecessary prosecution. 

Now, however, another type of law that deals with teens and sex is making national news and it raises a slew of different questions.  The Arkansas Supreme Court just ruled to overturn a state law that made it a crime for public school teachers to have sex with any student under 21. In a four-to-three decision, the court stated that the law essentially “criminalizes sexual conduct between adults.” With this decision, age once again takes center stage when the more important questions are about the relationship itself. 

The case at issue involved David Paschal a high school history teacher who was convicted at age 37 of having sex with an 18-year-old student.  Both parties agreed that the sex was consensual but it nonetheless violated a state law which says a person is guilty of second degree sexual assault if, among other things, the person “is a teacher in a public school in a grade kindergarten through twelve (K-12) and engages in sexual contact with another person who is: (A) A student enrolled in the public school; and (B) Less than twenty-one (21) years of age.”  

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In addition to sexual contact with a student, Paschal was found guilty of bribing a witness (he told another student he would give the 18-year-old $1,000 not to testify) and, in a separate case, was found guilty of serving alcohol to minors who were students at his school.  On the other side, the student involved is said to have reported the five-month affair only because she was told that Paschal was suddenly interested in another student. While we were not there and cannot know what was going in their relationship we are definitely left to wonder if it meets the criteria of being consensual, mutually pleasurable, non-exploitative, honest, and protected from pregnancy and STDs.

In its majority opinion the court focused on the age of the student who at 18 is a legal adult but I don’t see this as the most important issue.  There is a reason why 23 states (if a newly introduced law in California passes there will be 24) have dealt with student/teacher relationships outside of age of consent laws.  These laws are meant to protect the powerless from exploitation in much the same way sexual harassment laws are meant to protect employees from hostile work environments. I don’t believe the exact age of student has much bearing on the power dynamic between her and her teacher.  Whether she is 2 weeks shy of her 18th birthday or 3 months past it—at school he has power and authority and she does not. Put another way, regardless of their age or age difference, inside that building where they met he is treated as an adult and she is treated as a child. 

In the dissent, Justice Robert Brown wrote that the ruling “will cause significant disruption in our high schools and have a deleterious impact on education in general and the teacher-student dynamic in particular.”  I think this might be an overstatement as I don’t think most teachers are intent on sleeping with their students but stopped only by their fear of jail time.  Nor do I think most students are just waiting for their 18th birthday to make a move on their cute English teachers.

I, do, however, think that rules need to be in place whenever there is an inherent imbalance of power regardless of whether both parties are adults.  In much the same way a doctor should not have sex with a patient or a therapist with a client, a teacher should not have sex with a student.  I don’t really care if it’s a high school student or a graduate student—the sexual-relationship should at the very least wait until the student-teacher relationship has ended. 

News Sexual Health

State with Nation’s Highest Chlamydia Rate Enacts New Restrictions on Sex Ed

Nicole Knight Shine

By requiring sexual education instructors to be certified teachers, the Alaska legislature is targeting Planned Parenthood, which is the largest nonprofit provider of such educational services in the state.

Alaska is imposing a new hurdle on comprehensive sexual health education with a law restricting schools to only hiring certificated school teachers to teach or supervise sex ed classes.

The broad and controversial education bill, HB 156, became law Thursday night without the signature of Gov. Bill Walker, a former Republican who switched his party affiliation to Independent in 2014. HB 156 requires school boards to vet and approve sex ed materials and instructors, making sex ed the “most scrutinized subject in the state,” according to reproductive health advocates.

Republicans hold large majorities in both chambers of Alaska’s legislature.

Championing the restrictions was state Sen. Mike Dunleavy (R-Wasilla), who called sexuality a “new concept” during a Senate Education Committee meeting in April. Dunleavy added the restrictions to HB 156 after the failure of an earlier measure that barred abortion providers—meaning Planned Parenthood—from teaching sex ed.

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Dunleavy has long targeted Planned Parenthood, the state’s largest nonprofit provider of sexual health education, calling its instruction “indoctrination.”

Meanwhile, advocates argue that evidence-based health education is sorely needed in a state that reported 787.5 cases of chlamydia per 100,000 people in 2014—the nation’s highest rate, according to the Centers for Disease Control and Prevention’s Surveillance Survey for that year.

Alaska’s teen pregnancy rate is higher than the national average.

The governor in a statement described his decision as a “very close call.”

“Given that this bill will have a broad and wide-ranging effect on education statewide, I have decided to allow HB 156 to become law without my signature,” Walker said.

Teachers, parents, and advocates had urged Walker to veto HB 156. Alaska’s 2016 Teacher of the Year, Amy Jo Meiners, took to Twitter following Walker’s announcement, writing, as reported by Juneau Empire, “This will cause such a burden on teachers [and] our partners in health education, including parents [and] health [professionals].”

An Anchorage parent and grandparent described her opposition to the bill in an op-ed, writing, “There is no doubt that HB 156 is designed to make it harder to access real sexual health education …. Although our state faces its largest budget crisis in history, certain members of the Legislature spent a lot of time worrying that teenagers are receiving information about their own bodies.”

Jessica Cler, Alaska public affairs manager with Planned Parenthood Votes Northwest and Hawaii, called Walker’s decision a “crushing blow for comprehensive and medically accurate sexual health education” in a statement.

She added that Walker’s “lack of action today has put the education of thousands of teens in Alaska at risk. This is designed to do one thing: Block students from accessing the sex education they need on safe sex and healthy relationships.”

The law follows the 2016 Legislative Round-up released this week by advocacy group Sexuality Information and Education Council of the United States. The report found that 63 percent of bills this year sought to improve sex ed, but more than a quarter undermined student rights or the quality of instruction by various means, including “promoting misinformation and an anti-abortion agenda.”

News Law and Policy

No Need to Block Bathroom Access for Transgender Student, Attorneys Tell Supreme Court

Jessica Mason Pieklo

A transgender student in Virginia sued the local school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity was unconstitutional.

Attorneys representing transgender student Gavin Grimm told the U.S. Supreme Court this week that there was no reason to block a lower court order guaranteeing Grimm access to school restrooms that align with his gender identity while Grimm’s lawsuit against the Gloucester County School Board proceeds.

Grimm in 2015 sued the school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity—thus separating transgender students from their peers—was unconstitutional. Attorneys representing Grimm argued that the policy violates the 14th Amendment and Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex-based discrimination at schools that receive federal funding.

A lower district court ruled the school board’s policy did not violate Grimm’s rights. But the Fourth Circuit Court of Appeals disagreed, reversing that decision and sending the case back to the lower court, which then blocked the school district from enforcing its policy while Grimm’s case proceeds.

In response, the school board notified the Fourth Circuit of its intent to appeal that decision to the Supreme Court and requested the appellate court stay its order granting Grimm access to bathrooms aligned with his gender identity—a decision the Fourth Circuit granted in June.

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The school board then asked the Roberts Court to issue an emergency stay of the lower court decision blocking its bathroom policy while the Court considers taking Grimm’s case.

Grimm’s attorneys argue there is no basis for the Roberts Court to grant the emergency stay requested by the school board. The board has “utterly failed to demonstrate that it will suffer irreparable harm” if Grimm is allowed to use the boys’ restroom at Gloucester High School while the Roberts Court considers stepping into the case at all, according to Grimm’s attorneys.

Attorneys for the school board filed their request with Chief Justice John Roberts, who handles petitions from the Fourth Circuit. Roberts can rule on the school board’s request to block the lower court decision, or he can refer the request to the entire Court to consider.

It is not known when Roberts or the Court will make that choice.

The Gloucester County School Board has argued that the Obama administration overstepped its authority in protecting transgender student rights. Attorneys for the school board said that overreach began in 2012, when an administration agency issued an opinion that said refusing transgender students access to the bathrooms consistent with their gender identity violated Title IX.

The administration expanded that opinion in October 2015 and filed a friend of the court brief on Grimm’s behalf with the Fourth Circuit, arguing it was the administration’s position that the school board’s policy violated federal law.

The administration again expanded that opinion in May this year into a directive stating that should publicly funded schools deny transgender students access to facilities that conform to students’ gender identity, they would be in violation of federal law, subject to lawsuits, and risking their federal funding.

The Fourth Circuit relied heavily on these actions in initially siding with Grimm earlier this year.