Agudath Israel Aggressively & Actively Blocking Legislation That Would Protect Our Children

June 28, 2001

M E M O R A N D U M

TO:
Honorable Peter F. Vallone
Honorable Priscilla A. Wooten
Honorable Members of the New York City Council Education Committee

FROM:
David Zwiebel
Executive Vice President for Government and Public Affairs

cc:
Honorable Rudolph W. Giuliani

Members of the Committee of Nonpublic School Officials of New York City

SUBJECT: Intro. No. 933-A

This memo is a follow-up to my memo of June 14 to Peter Vallone and
Priscilla Wooten, in which I requested that the City Council postpone any
action on the captioned legislation until Agudath Israel and other
representatives of New York City's nonpublic school community had an
opportunity to study and comment on the bill.
I am grateful that the City Council acceded to our request; and I take this opportunity now to share with you our concerns about this legislation, as well as to offer what I hope will be seen as a constructive suggestion.

Section 3 of the bill would add a new Section 10-124 to the New York
City Administrative Code, requiring any employee of any public or private
school who "witnesses or has reasonable cause to believe that a crime
involving the health or safety of a child has occurred or has been
threatened in an educational setting" to immediately report such information
to the Police Department and to the school principal.
After those reports are made, the principal is obligated to "promptly notify the parent or legal guardian of a child about whom a report has been made" unless
the Police Department determines that such notification would impede a
criminal investigation. Failure to comply with these requirements would
be classified as a criminal misdemeanor.

This proposal is apparently a response to several incidents in public
school settings that might have been avoided had the police been brought
into the picture at an earlier stage. Without in any way denigrating
the seriousness of those few incidents, or the need to find ways to try
to avoid such incidents in the future, we question whether the approach
embodied in the proposed legislation is the most appropriate means of
achieving that purpose.

Based on the input we have received from the Jewish school principals with whom we have discussed this issue, we are concerned that any legislation that strips principals of their professional discretion to handle sensitive situations in the manner they deem most appropriate would do more harm than good.

It is important to recognize that even under existing law, schools
cannot simply ignore situations that threaten the health or safety of
students. A school's common law duty to care for its students imposes upon
principals and other responsible school authorities the obligation to
take reasonable steps to deal with harmful or dangerous conduct. Those
steps may include, under certain circumstances, notifying the police
about actual or threatened criminal activity. At the same time, principals
and other school authorities have a great deal of professional
discretion in how to deal with individual situations. So long as they do not
abuse that discretion by acting negligently or otherwise abrogating their
duty to care, they are free to deal with situations in ways that they
understand to be in the best interests of the child or children under
their care.

Thus, for example, under existing law, if a student is caught smoking
marijuana, a principal may decide to deal with the problem by referring
the child to a drug counselor. Or, if a student is acting in a
physically threatening manner toward one of his peers, the principal may decide
that the problem can best be addressed through a phone call to the
aggressive child's parents. Or, if a model teacher who has a longstanding
unblemished record is provoked into lashing out at a troublemaking
student, the principal may decide to address the incident by having a
heart-to-heart chat with the teacher and student. Or, in any of these cases
or others like them, the principal may decide that the matter is best
dealt with through the school's internal disciplinary system, or by
suspending or expelling the offending party, or by calling in the police.
The existing law recognizes that one size does not necessarily fit all
situations, and that knowledgeable school authorities are the ones best
equipped to serve as gatekeepers in determining whether any given
situation merits the extreme step of bringing in the police.

Under the proposed new legislation, however, all such school-based
discretion and professional judgment would be removed. School employees who
witness or have reasonable cause to believe that a crime involving the
health or safety of a child has been threatened or actually committed
would have to call the police immediately – no matter what the magnitude
of the crime, no matter who or how old the perpetrator, no matter what
the surrounding circumstances, no matter what the school principal and
student guidance counselor may consider most appropriate. The bill
would thus operate in blunderbuss fashion and effectuate a sea change in
the way principals and other key school employees deal with problems that
may arise in their school settings.

The Jewish school principals with whom we consulted were unanimous in
their opinion that this change would be a change for the worse, not for
the better. Their experience has been that most cases are best-handled
internally, without police intervention. They are especially troubled
by the prospect of having to call in the police for student-on-student
conduct. They point out that personal trust is the most critical tool a
principal has in effectively dealing with problems that may arise in a
school setting – personal trust between the school administration and
its staff, between the school administration and its students, between
the school administration and its parent body – and that bringing in the
police as soon as a crime is committed or even suspected is likely to
destroy that foundation of personal trust, thereby making it exceedingly
difficult to deal effectively with many of the problems that are far
better addressed by school personnel at the school site.

It is thus our view that the bill's failure to allow for principals to
exercise professional judgment and discretion in dealing with actual or
threatened criminal conduct is a serious flaw. This is especially so
with respect to nonpublic schools, where there has been little if any
evidence that the existing system does not adequately protect children,
and where any such inadequacy can easily be addressed simply through
parents' decisions to remove their children from the school.

There are several ways in which this legislation might be improved:
limiting the mandatory reporting provision to adult-on-child crime;
limiting the types of crimes that have to be reported to felonies that
pose a clear and present danger to children; excluding nonpublic schools
from the ambit of legislation that is ultimately a response to a
perceived problem in the public schools.

Most fundamentally, and in addition to these possible improvements, our
recommendation would be that the bill be revised to simply codify and
amplify the existing common law standard. Thus, the bill could continue
to require school employees immediately to report to their principals
crimes or threatened crimes affecting the health or safety of students,
as the current version of the proposed legislation does; and then
establish the principal's legal duty to take reasonable and appropriate
steps to deal with the harmful or dangerous conduct. The bill might spell
out what some of those steps might be, including immediate contact with
the Police Department if the nature of the situation is such that
reasonable care would demand such contact; but the bottom line
responsibility for exercising professional judgment in dealing with any given
situation would rest four-square on the principal's shoulders. Negligent or
reckless failure to discharge that responsibility would represent an
abrogation of a school's duty to care for its children, and could be basis for
liability.

Such an approach, we believe, would largely accomplish what the bill's
proponents seek to accomplish, while at the same time preserving the
critical element of professional discretion that has by and large served
schools and students well.

Many thanks for your consideration of our views.

D.Z.



UOJ Comments

I thank JWB for submitting this Agudath Israel Internal Memo.
They are effectively attempting to block legislation that would allow the police to be brought in when criminal conduct is uncovered.
If a crime was committed at the Agudah, would they call the Novominsker Rebbe or would they call the police?

Dovid Zweibel, why protect the principals when they are the worst offenders?
Where is the oversight from criminal behavior that the principal's perpetrate?
Is covering up a crime better or worse than committing the crime? We know molesters have been kept on yeshiva's payroll long after the molester was discovered.

Chaim Dovid you are a disgrace to our community!