Testimony Before the Maine Legislative Committee on Educational and Cultural Affairs

by Bernard Huebner

Augusta, Maine, February 10, 2000


     In the midst of all this controversy I thought it might be refreshing
to offer you an image of something we all agree is beautiful and good.
Take a moment and conjure up in your mind's eye, if you will, our state's
centerpiece, Mt. Katadhin.  Probably quite a few of the people in this room
have climbed to its top, and remember being surprised to find how large it
was, how enormously open, and how almost level, with room for all.  Not
that there aren't difficulties and even risks.  The weather can rise up
seemingly out of nowhere, or you can make a little misstep and twist an
ankle, and rapidly an environment that seemed secure and liberating one
moment can grow complicated and even life-threatening.


     A healthy democracy, it strikes me, is a lot like Mt. Katadhin.  We
take it for granted that our social and political environment is safe and
secure, and--with a little luck and a lot of hard work--our personal
prospects seem open, the way level, with room for all.  But, as on the top
of the mountain, there is always still some element of risk.  For history
teaches us that human liberty is uncertain, that sometimes there arises,
like the weather, a small latent group seeking to take control over some
other part or the whole of the body of the people, and in every case
offering a plausible-sounding but urgent, even hysterical, rationale that
purports to protect the same people from a grave danger.


     How do we know this?  History--one of those subjects we teachers teach
in school--tells us so.  You don't have to look far in the textbooks.  The
Russian Communists come to mind, and of course the Nazis in the 1930's in
Germany.  Or the Khmer Rouge in Cambodia.  Or even the Catholic Church
during Galileo's time.


     But, you say, that was a long time ago, and far away; it could never
happen here.  Well, it has happened here.  My great-great-grandparents
owned--consider that word: "owned"--35 slaves on their Virginia plantation.
And the United States Government believed it necessary to force tens of
thousands of American citizens of Japanese and German ancestry into what
were euphemistically called internment camps during the Second World War.
Senator Joe McCarthy and the House Un-American Activities Committee
succeeded in destroying whole careers during the early 1950's, in the name
of keeping America safe.


     But, you say, that was back then; it could never happen now.  But
maybe it is happening now.  Drug-sniffing dogs are performing random
searches of student lockers in some Maine high schools.  OSHA claims it is
necessary to begin controlling the home workplace.  Someone somewhere
thinks my social security number--note the literal meaning of those two
words: "social security"--should be displayed on my driver's license.  And
the State's Chief Warden just these past two weeks has been pushing for his
wardens to have the power to stop virtually anybody--without any evidence
of suspicious activity--bold enough to venture into the woods or out onto
the waters of Maine.  Governor Angus King announced just last week that not
only does he think the law at issue before us today is a fine law, but that
he wants to see it extended to cover day-care workers, doctors and nurses,
and by further extension, I assume, coaches, scoutmasters, pastors,
therapists, first responders, firefighters--they're sometimes alone with
children, remember, carrying them in their arms, no less.  I was a
volunteer firefighter for 13 years, and it occurs to me that if I had been
required to undergo fingerprinting and a criminal background check then, I
would have "got done," as we say, earlier.  Who's left?  School volunteers?
Grandparents come to mind. To the Governor I say: whom, finally, do you
NOT feel it is necessary to fingerprint and run criminal background checks
on?


     And now along comes the Department of Education.  And I need to pause
here to say that I am not the enemy of the Department.  I have worked with
and for the Education Department in years past, serving on a task force
once and consulting to train teachers for them often.  I remember exciting
times, before the budget crunch of 1990, when people from the Department
and teachers from the field worked side-by-side for years trying to build
gifted and talented programs throughout Maine.


     But something has changed more recently; it feels like a subtle--or
perhaps now with this law a not so subtle--poison in the system.  And so I
want to know: who exactly was it who first proposed fingerprinting and
running criminal history background checks on every chalkwielder and
floorbuffer in Maine's schools?  Was it a Department bureaucrat who read
about this madness elsewhere in the nation?  A legislator trying to respond
forcefully to a citizen's complaint or fear?  Was it someone in law
enforcement?  I'd like to know the point source, to better understand how
we came to be here today facing each other across such a vast and
unproductive gulf.


     Or, more accurately, slope.  As in slippery slope.  The kind of
slippery slope that countless well-intended peoples have found themselves
on throughout history.  People who started down that slope, or were led
down it by others' hysteria, and woke up too late to climb back up again,
and so made history, to their dismay and often destruction.


     But how do you know when you're on a slippery slope?  It's a valid and
perplexing question.  And I'll admit to moments of doubt when I wonder if
all my belief and decided action aren't perhaps out of proportion to the
perceived threat.  But you can never be completely sure, of course, which
is just why we call it "slippery."


     But there are indications--facts, things people have said and
done--that have alarmed great numbers of us here in Maine, both among
school personnel and in the population in general.  Here are some examples:


     1) The fingerprint/police check bill was conceived, put through
committee and passed by the Maine Legislature, all without any statistical
base whatsoever.  But then, hysteria, even quiet hysteria, is not a quantifiable
entity.

     2)  The bill was passed unanimously by both houses, without any
debate, it appears.   This reminds me of the Gulf of Tonkin Resolution
during the Vietnam War, where Congress--speedily and with only a literal
handful of senators opposing it--gave the President full powers to
prosecute an undeclared war, and all of this based on a supposed North
Vietnamese PT- boat attack on a U.S. destroyer, which attack it later
appeared did not even happen).

     3)  While virtually everyone agrees that the law is supposed to deal
with child abuse, nowhere in the actual language of the copies of the law I
have seen does the term "child abuse" or anything like it occur.  Instead
the law calls for records of any convictions to be brought under the
scrutiny of the Department of Education.

     4)  The statute specifies "conviction data."  So what does the
Commissioner of Education have in mind when he states, in his February 26,
1997 testimony before this committee, "A further effect of this provision
would also give the Department authority to take action when we receive
allegations  [author's emphasis] of physical or sexual abuse . . ."?

     5)  The Commissioner of Education states in yesterday's Bangor Daily
News that "Maine is following the lead of 39 other states that require
background checks."  I assume, within the context of the controversy
surrounding our law, that we are meant to understand FBI checks based upon
fingerprints.  But according to the most recent '98-99  NASDTEC Manual (of
the Nat. Assoc. of State Dirs. of Teacher Ed. and Cert., the national
clearinghouse for all this information), and excluding Maine:



        --only 32 states require any kind of background check at all, FBI, state
              or local;
        --that only 23 of these call for an FBI check;
        --that only 30 states require fingerprinting;
        --that our neighbors Vermont, Massachusetts, Rhode Island and
           New York have no such fingerprinting requirement;
        --and that two states, Kansas and Nebraska, have rejected
           fingerprinting.



     6)  From the Department's Informational Letter #17 to Superintendents
(see . . . teachers do know how to use the Internet to do research), we
learn that "the sole intent of this legislation is to protect children."
Why, then, are they fingerprinting and checking business managers?
Carpenters, plumbers and electricians?  Or, I suppose, my wife, who goes
into the schools as a private literacy consultant and, sometimes to
demonstrate a
teaching practice, works with a group of students while their
 teachers observe?

     7)  Department of Education Information Letter #27, the one that gives
so many of us shivers.  Listen to the faint historical resonances as I read
from this, the Deputy Commissioner's letter to superintendents offering
"Tips for Scheduling Fingerprinting Sessions."



        --"If a district refuses to participate as scheduled it may mean that
            employees cannot be processed by the time the next employment
            year begins.  I urge you to advise your boards against taking any
            action that may result in loss of work time for employees."  By the
            way, the State Police lieutenant in charge of the fingerprinting
            process is quoted in the paper this past weekend as saying that
            up to a third of the teachers scheduled for such sessions have
            failed to show up in some schools.  I wonder why . . . .
        --Or this, Tip #11: "It is particularly important to have a district
            representative on site during fingerprinting, to ease the anxieties
            of personnel."
        --Or Tip #16: "At one site the State Police reported that individuals
            who had a long wait for fingerprinting made rude comments to
            troupers (sic) taking the prints.  I ask that you coach personnel
            about taking out frustration on troupers who are doing their job
            and not responsible for the Criminal History Records Check
            requirement being approved.  I have asked the State Police to
            inform me of names of individuals who are particularly rude so I
            can pass this information along to the Superintendent."
        --Or finally, Tip #17: "One district provided refreshments and festive
            music to set a positive tone."   I'm surprised there wasn't a train
            waiting to take the fingerprintees away.



     But the clearest evidence that something is seriously wrong is when
those with the power to do so try hard to suppress open debate.  Suzanne
Malis-Andersen was gaveled down when she tried to discuss these same issues
several weeks ago before this very committee.  The hurried and hushed-up
setting of the early date of this hearing--after repeated requests from
teachers, the MEA and members of the Legislature and its leadership to hold
it during school vacation week--seems like a calculated effort to prevent
people from speaking.  The Speaker's and the Senate President's waiver of
the customary two-week notice of public hearings looks the same way.  And
recently I was approached by a nationally-syndicated radio program in
Washington D.C. to debate the law . . . only no one in State Government
could be found to argue for it.  The program's interviewer could at first
not get her calls returned by the Commissioner's or the Governor's offices.
The MEA's Chief Counsel tried on her behalf for a week but could not find
a single teacher to support the law.  Then two days before the taping, the
Deputy Commissioner agreed--evidently ordered to do so by the
Governor--only to withdraw the next day.  The interviewer finally called
the Clerk of the House and went down the roster, calling name by name until
Representative Julianne O'Brian, one of the original sponsors of the bill,
agreed.  By the way, we had a stimulating and friendly debate; we taped for
45 minutes and talked for another 30, and have agreed to stay in touch in
an effort to find a positive solution.


     Actually there is one last even clearer evidence of how dangerously
things are out of balance.  It is the evidence of your own body's visceral
response, of feeling sick, as upon discovering that you are under the
control of someone you no longer trust.  At first I mistook this sickening
feeling for my own fear, that I was out of step with everyone else, and
that I was going to make an enormous fool of myself.  But driving down to
the hearing in this room three weeks ago, I suddenly realized what it was.
It was the feeling you have when you betray someone.  Except, I recognized,
as I imagined for the hundredth time having my fingers rolled in ink, I
would be betraying myself.  And my profession and what it stands for: the
frustrating human
search for truth and dignity and personal liberation.  Suddenly I didn't
want to teach anymore, it felt so hollow.  Why teach children civics, I
reasoned, in a world so contaminated  by politics?


     So this law needs to be repealed.  For so many reasons.  Because I am
not at all alone in what I have said here; our poll figures show that
clearly.  And because a compromise measure--checks for new hires
only--merely  slows down the process by which all teachers finally fall
under such insulting and invasive scrutiny.  And because a compromise
measure drives some fine teachers I have talked with to decide to retire
early, and likely many other younger ones not to enter the profession in
the first place.  And lastly because it won't really work.  There will
always be first-time offenders, and those with existing records will still
find other likely better opportunities to abuse children.  And because,
when that happens--when some really ugly incident hits the public in the
face despite this vaunted law--I am deeply afraid of what repressive step
the Legislature will be tempted to take next in their effort to maintain
control.


     And because I believe that if we really start over from scratch, and
commit ourselves to bringing the necessary resources to bear, we can do a
better job of protecting children through a coordinated program of positive
actions.  And keep and continue to attract good teachers in the bargain.


     Remember:




        Now let's make Maine the first state in the nation to safeguard
          both our children and their--and our--constitutional rights.
        Repeal this law in its entirety, and begin work toward accomplishing
          its laudable goal through more positive, pro-active means.