Letter to MCLU from Bernard Huebner
Dear Ms. Gilpatrick,
Thank you for offering to refer my questions to the proper channels at
MCLU for possible consideration for legal review. I believe there are
really two questions I have which are central to the efforts of our group,
Maine Educators Against Fingerprinting, to help the Legislature consider
more positive alternatives to the current controversial law.
The first question concerns what I have heard repeatedly is a law which
sometimes causes former school employers (typically principals and
superintendents) to withhold what could be damaging, though truthful,
information about a former employee when the employer is contacted as a
reference in the former employee's
search for a new position. Specifically, we are talking here about an
employee who was discovered to have had inappropriate contact with a
student, but who was not prosecuted as a result. Rather, the employee "cut
a deal" with the employer, that he/she would go quietly if no charges were
pressed. This may have been because the student's family chose not to
press charges, or because the employee and his/her principal/superintendent
were friends, or because the employer chose not to embarrass the school and
community. In any event, the perpetrator was allowed to leave and seek
employment in another school, at which point the above problem of failure
to fully disclose the employee's offense occurred.
I have heard that what lies behind this situation sometimes is the risk
that the former employer can be sued for disclosing such details from the
employee's personnel file, even though such dislosure was truthful. As you
can imagine, such situations are not detectable by fingerprinting or FBI
criminal history records checks, and serve only to perpetuate the problem
of abuse of students by school workers. My question, therefore, is: is
there in fact a state or federal statute that is somehow silencing former
school employers and thus abetting the problem? If so, exactly how does it
work?
My second question concerns the much discussed Fourth Amendment rights
connection to the current law. While I understand that recent Supreme
Court decisions have allowed such laws to stand, and Attorney General Drew
Ketterer has ruled to that effect at the request of the Legislature's
Committee on Eudcational and Cultural Affairs, I would like to press in a
little harder. First, one Supreme Court's ruling becomes another's
reversal, as when the Court first ruled unconstitutional, then
constitutional, a number of President Franklin Roosevelt's New Deal
initiatives, such as Social Security, after Congress had passed them.
But more to the point is my curiosity about the applicability of the
"Greater Good" argument that I understand drives decisions about
constitutionality in cases such as the current one. The Department of
Education would of course argue that the Greater Good of "if only one child
is saved" is adequate to sustain the law. Taken in isolation, as has been
the case to date, that argument has persuaded many. But taken in its
larger and more proper context, that of child abuse in Maine in general and
the State's response to same, it seems to me that the Greater Good argument
crumbles on the following grounds. State and national child abuse
statistics suggest that the current law might discover one or two POTENTIAL
abusers within the schools of Maine per year. Meanwhile, as we have tried
to bring to light, the Maine Department of Human Services in 1997, the most
recent year with available figures, failed to follow up on over 3,000 cases
of suspected abuse referred to it because of lack of adequate funding,
personnel, and resources. My question, therefore, seeks to know exactly
where the Greater Good may lie in the current situation: with the spending
of millions of dollars on a fingerprinting/FBI check program estimated to
turn up virtually no actual cases of new abuse, or on investigating and
acting upon the thousands of suspected but ignored cases that DHS is
informed of but has to turn away uninvestigated. Or more to the underlying
point, in such a context and within such a comparison, does the
fingerprinting law really serve the Greater Good and can it really still be
thought, therefore, to be constitutional?
The time-line on these questions is extremely short, as I presume you
know. The State Senate may at any moment debate and vote on the bill
before it: whether to affirm the current law, to repeal or amend it. Maine
Educators Against Fingerprinting continues to try to assist legislators in
gaining a better understanding of the issues involved, such as these two
above, to help them make a fully informed decision. Your timely help in
advancing both our and their understanding would be greatly appreciated.
Thank you
Bernie Huebner
Maine Educators Against Fingerprinting