To touch or not to touch

By Jay Hammond, Staff Counsel

For at least the last ten years I have been urging teachers, as well as other school employees we represent, to avoid physically touching students. I do not pretend that advice is good educational advice, and I will leave that advice to the educational experts.

I do, however, believe it to be excellent legal advice. The number of cases I see that involve allegations of improper touching continue to increase each year, and I have no reason to believe that trend will be reversed anytime soon.

Simply put, if you do not physically touch a child, you cannot be accused of that touch being inappropriate. That being said, refraining from touching still doesn't prevent someone from accusing you of an improper touch that never happened, but that is a different situation over which the teacher has no control.

What few people realize is that even the classic example of simply taking a child by the arm and leading him to the principal's office can lead to four levels of jeopardy.

That's because in Iowa, an "assault" is defined as "an offensive touching." Thus, if the child led to the principal's office is "offended" by your touch, (would you really want to empower the last child you took to the principal's office to make that decision?) you may find yourself in a criminal assault trial as the defendant, a civil assault trial as the respondent liable for damages, an action to terminate your contract, a Board of Educational Examiners proceeding seeking a sanction against your teaching license, or all four at the same time.

In addition, you may experience being the subject of a Chapter 102 investigation to determine whether you have physically abused the child under DE rules.  If the report of abuse is founded then there is a mandatory filing requirement with the Board of Educational Examiners.

You may legitimately ask whether you are entitled to be defended by the ISEA in one or all of these forums, and the answer is "yes" if you are an ISEA member. You may be entirely innocent of any improper touching, and you will receive legal assistance in establishing a defense. And you won't have to pay a penny in legal fees.

But I would ask you whether it would be better to simply avoid any action that could serve as the basis for the filing of a charge in the first place--a charge that is based on misinterpretation or misrepresentation of your actions. One thing teachers never tell me is that they simply have far too much idle time on their hands, so they're thinking about filling the void by litigating claims brought against them.

Lately, we have had several allegations of improper touching that the teachers honestly don't even remember occurring. The explanations for these types of allegations are that the conduct did not occur at all and the allegations are fabricated, or that the "touching" was so innocuous that it was meaningless to the teacher--but not to the student or parent.  At least in the latter situation, no touching would have led to no problem.

I understand that sometimes teachers will hug a child who runs to them for a hug in the morning.  Matters of self-esteem are important, especially in the lower grades and in special education.

But where those kinds of issues are not present, and you are simply confronted with the opportunity to touch (no matter how innocent the context), I urge you to ask yourself whether the touch itself is so important that you are willing to risk allegations of improper conduct in order to effectuate the touch.  In most instances the choice should be to avoid the touch, and, thus, avoid four potential levels of jeopardy to your career.  The choice is yours. 

Taken from the April/May 2006 ISEA Communique