[Editor’s note: Because the teacher involved in this story has been investigated and cleared of criminal wrongdoing by both the New Hanover County School district and the New Hanover County Sheriff’s Office, we have not named the individual. Because the student involved is a minor, we have not named her, either. We understand some may disagree with this decision and encourage those with questions or concerns to contact us directly.]
WILMINGTON — After an investigation by both school officials and law enforcement, there will be no charges against a middle school special education teacher with a ‘pattern of touching students’ on the head, shoulder, and stomach. The investigation found insufficient evidence that the touching was sexual in nature, but acknowledged it did make at least one student justifiably uncomfortable.
While the new Title IX director for New Hanover County Schools (NHCS) found that the teacher had not violated policies prohibiting sexual harassment and sexual contact with students, questions remain about how the district responded to the incident, including whether the teacher’s pattern of behavior was a violation of other policies. It also remains unclear why an administrator asked the student and the teacher to sign a form usually used to mediate disputes between students; the form includes, among other requirements, a prohibition from talking about the incident.
The teacher was suspended with pay during the investigation but will not face any further change in assignment. The student was offered the option of transferring schools, and will apparently do so.
A pattern, but not a crime or a policy violation
Earlier this month, NHCS Title IX Director Jarelle Lewis investigated a complaint filed by a seventh-grade student at Emma B. Trask Middle School. According to a letter sent by Lewis to the student’s parent, the student stated that a special education teacher at Trask “touched her legs, breasts, and shoulder on different occasions during this academic year.”
The student reported that she felt the touching was “sexually motivated” and that it made her uncomfortable. Lewis investigated possible violations of NHCS policy on sexual harassment and sexual contact with teachers. He interviewed both the student and the teacher, as well as four student witnesses. In his letter, Lewis stated he was able to “confirm several facts,” including:
- That the teacher did repeatedly touch the student on her shoulder and stomach,
- That the student was made to feel uncomfortable
- That the teacher had a “pattern of touching other students on the shoulder, head, and stomach
Lewis noted in his letter that the student was cooperative and credible. Lewis stated that it was “understandable” that the student felt uncomfortable and “reasonable” that the student believed the contact was sexual in nature.
However, Lewis determined the teacher did not violate NHCS’ sexual harassment or sexual contact policies, writing that the teacher’s “conduct did not include intentional contact of [the student’s] sexual genitalia. In addition, there was no evidence that showed [the teacher’s] conduct was motivated by a desire for sexual contact even though it was reasonable for [the student] to believe that contacts were sexually motivated.”
Further, Lewis wrote that the teacher’s “conduct does not meet the definition for Sexual Harassment because the conduct was not sexual in nature based on a preponderance of the evidence.”
[Note: the phrase ‘preponderance of evidence’ is often used in civil law as the standard for a ruling; it is generally considered to be a lesser burden of proof than that required in criminal court.]
NHCS Superintendent Dr. Tim Markley said the district could not comment on whether the teacher’s “pattern of touching other students” was a violation of any other NHCS policy besides the two cited by Lewis. Markley said that “in general staff members should not touch students in any way that makes them uncomfortable.”
The New Hanover County Sheriff’s Office (NHCS) confirmed that it was contacted about the incident. According to spokesperson Lt. Jerry Brewer, NHCSO investigated the allegations and, after consulting with the District Attorney’s office, decided not to press charges. District Attorney Ben David said he had “no comment” on the issue.
Lewis noted that a “finding like this is in no way a suggestion that we did not believe” the student’s complaint. Lewis noted that he was sure the student’s mother would be disappointed in the outcome, but emphasized NHCS’ commitment to preventing harassment and retaliation.
Lewis’s letter stated that while there was insufficient evidence to show the teacher violated the NHCS employee conduct policy, her actions “needed to be officially documented and corrected.” This included a “formal letter” that would remind the teacher of “appropriate student contact” and a written record of the allegation.
Lewis noted NHCS’s “no-tolerance” policy for retaliation, saying that the student should not “suffer retaliation in any way” for cooperating with his investigation. Lewis also recommended counseling, offered by NHCS, to ensure the student’s “educational pursuits are not negatively impacted as a result of this complaint or investigation.”
The resolution to the situation appears to be that the student will now attend a different school.
During the investigation, the teacher was suspended from Trask with pay from September 25 to October 8. For several days afterward, the teacher was given an “alternative work assignment” while options for the student’s transfer to another school were considered. The teacher has since returned to her regular assignment which will not be changed, according to Superintendent Dr. Tim Markley.
Asked if it was a regular practice to move students — and not teachers — when a teacher’s behavior made a student uncomfortable or if there were specific factors that informed this decision, Markley said, “every situation is handled according to its unique circumstances. The student was not forced to transfer but was offered a transfer as an option. The District remains committed to its students with the goal to provide an environment free from sexual harassment or other misconduct in all of its educational programs and activities.”
While the details of the student’s transfer were handled, a “reciprocal stay away agreement” was implemented between the student and the teacher. The agreement, however, has raised some additional questions.
On or around October 8, the teacher and student signed a ‘no contact contract.’ The form they signed is usually used to mediate disputes between students, and it’s not clear why it was used for an issue between the student and teacher.
The form also appears to discourage the student from discussing the incident, including in its prohibitions “any comments or discussion with others regarding the situation or student.”
Lastly, the form is signed by the student, who is a minor, and the teacher, as well as the administrator. No parents appear to have been involved in the contract — a conclusion further supported by Lewis’ explanation of the contract to the mother (an explanation that would not have been necessary if the parent had been there). Superintendent Markley said it is the “District’s practice is to involve parents. The District cannot comment further with respect to the role of the parent in this specific situation.”
In general, Markley said ‘stay away’ agreements are standard practice, but acknowledged “the particular form used in this case is not standard and is under review by the District.” Markley confirmed that form is “primarily intended for situations in which a student is accused of misconduct with another student.”
While the form does prohibit discussing the issue, Markley said it was not intended to be a legal contract and was not a ‘gag order.’
“Forms like the one used are not intended to restrict students from talking to anyone they need to talk to but are intended for student safety. They are not intended to be gag orders. In this particular case, the student was not prevented from talking to her parent, counselors or law enforcement or anyone she needed to talk to,” Markley said, reiterating that the use of the form was under review.
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