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Protecting Teachers vs. Privacy of Juvenile Record

A bill recently passed by the Texas Legislature, and sitting on the Governor's desk for his approval, is a statute that would reveal to teachers almost all the juvenile records of their students. The Legislation arose out of the stabbing death of a teacher in Tyler, Texas, by a juvenile who had a criminal record for violence.

Both the goal of protecting teachers, and giving juveniles an opportunity to start with a "clean slate" by protecting their privacy, are worthwhile goals. The balance that needs to be struck between the two is to limit the disclosure statute to those acts that would truly put a teacher in danger.

For example, a juvenile convicted of acts of violence (e.g. sexual assault, robbery, murder, etc.) would certainly demonstrate a predisposition to cause serious bodily injury or death to a teacher during an attack. However, the possession of marijuana or even shoplifting would normally not present a danger, or, at least, not enough of a realistic danger to a teacher, to warrant the complete disclosure of all the criminal records of all juveniles.

To minimize doubt about which juvenile records should be disclosed and which should not, there could simply be a categorical list included in the statute or promulgated in the Texas Educational Association's regulations.

If one of the policies behind the confidentiality of juvenile records is to help juveniles get employment in the future, then the disclosure of only violent crimes committed by the juvenile would be consistent with that goal for this reason: While a background check that shows violence and dishonesty will preclude most job opportunities, a history of dishonesty is normally not going to be a basis for a threat of physical harm to a teacher. If, for example, a juvenile had a shoplifting case against him/her and it was not disclosed to a teacher or a prospective employer, then the juvenile has the chance to start his/her life over without a public criminal record; and, hopefully, he/she has learned his/her lesson by having gone through the juvenile justice process.

On the other hand, if that shoplifting case is disclosed to the teacher and then, within the seven years the information must be kept (under the new proposed statute) by the receiving school or other agency, the criminal information, no matter how minor, will foreseeably get out to Publicdata.com or other private enterprise databases. Then, one of the two goals, noted above, with regard to confidential juvenile records, is completely destroyed. For example, if that criminal information is obtained (with the hundreds of people who have access to it, it is almost inevitable that many juvenile criminal records will be accessed) by a potential employer, the juvenile, whenever or wherever he applies for a job, will find his chances of employment have diminished tremendously.

The Statute SB-1106 has three flaws: First, the criminal records may now be disclosed to a laundry list of agencies, including, Health and Human Services; Department of Public Safety; Texas Education Agency; any Independent School District; a Juvenile Justice Alternative Education Program; a charter school; a local mental health or mental retardation authority; a court with jurisdiction over juveniles; a District Attorney's Office (already accessible under current law); a County Attorney's Office (already accessible under current law) and a children's advocacy center.

The second flaw is that each of those agencies may not destroy a disclosed juvenile criminal record for seven years from the date they received the information.

The third flaw, and, perhaps, the most important flaw of this prospective legislation, is that it does not distinguish between violent offenses and non-violent offenses; that is, juvenile conduct which would be considered a felony or conduct which would be considered a misdemeanor. It is a wholesale disclosure of any and all juvenile conduct where the juvenile (1) "was taken into custody" or (2) referred to a juvenile court for "allegedly engaging in delinquent conduct" or (3) for "conduct indicating a need for supervision," and (4) "allegations," even if those allegations are found to be not true. These four categories cover approximately 80% of all juvenile matters. The law is also not clear with regard to the category of "being taken into custody." Almost all juveniles are taken into custody temporarily before they are released, if they are, to their parents.

This bill paints with much, much too broad of a brush.

As part of the Democratic process, the content of this blog has been sent to the Governor's office today, Tuesday, June 14, 2011, at approximately 11:00 a.m.

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