Should immunity shield schools in teacher sex cases?

Faced with an 85 percent increase statewide in the number of investigations into inappropriate relationships between students and teachers, there are new calls to let parents of victims bring lawsuits against school districts.

Faced with an 85 percent increase statewide in the number of investigations into inappropriate relationships between students and teachers, there are new calls to let parents of victims bring lawsuits against school districts.

“If somebody is covering for somebody, they should be held accountable, too,” explained the father as he sat in his attorney’s office in west Houston.

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For years, the wrought iron fence, gates, securities and cameras lulled him and his ex-wife into believing their kids were safe at KIPP Explore Academy.

“We were so worried about what was on the outside, that we weren’t concentrating on what was on the inside,” the mother explained.

But all that changed last fall when their daughter brought home a letter from KIPP explaining the school’s former guidance counselor, Brandon McElveen, was charged with indecency with a child.

Court records show that child was a second grader at the school.

At first, the allegations seemed unbelievable to many.

“I was upset,” the mom said. “Our whole family was upset. Our kids were upset. They were just, ‘No, that’s just somebody blaming him,’ and, ‘That’s not real. He would never do that.'”

But the allegations kept coming. In the next two weeks, McElveen was charged with touching two more elementary school students.

That’s when the mother got a call from the school explaining her daughter had disclosed to another counselor that she was a victim, too.

“My daughter disclosed that she would sit on his lap,” the mother said. “She would feel him touching against her leg and touching against her bottom.”

KHOU 11 Investigates is not disclosing the parents’ names to protect their daughter’s identity.

The parents say the inappropriate touching went on for years.

“You believe, without a doubt, that the school knew what was going on?” KHOU 11 Investigates asked the parents.

“I do,” the girl’s father said.

“I feel like there has to be somebody, some teacher,” the mother said. "Whether it’s a janitor, somebody had to have seen something and felt like, ‘This isn’t right. Somebody had to have said something.”

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But the parents say when they tried to get answers from the school, they learned a whole new lesson from KIPP.

“It’s like their priority's KIPP,” the girl’s father said. “That's their priority. Not the children. Not what happened, but KIPP. They've got to keep that name clean.”

Desperate for answers, the parents hired attorney Josh Verde. But the attorney says before he could sort out what happened, let alone file a lawsuit, KIPP went to court and kept Verde from interviewing school employees.

“I think no matter what the legal action is that an aggrieved student or aggrieved parent brings against the school district, the first thing they are going to do is assert immunity,” Verde said.

Government immunity is an ages-old precedent that the government, including public school, can’t be sued.

“The best way I’ve ever seen it explained is that the government represents all of us, and therefore, it’s kind of inconsistent to be able to sue yourself,” explained KHOU 11 Legal Analyst Gerald Treece.

Verde also represents a Katy High graduate who is suing the district after a former art teacher pleaded guilty to having an improper relationship with her.

Katy ISD claimed immunity in that case, which is still pending in court.

Verde believes the immunity defense is one that schools hide behind to not only avoid paying victims, but also to keep parents from finding out who knew what and when.

“The potential for concealing what really happened in certain instances, it's there, and it's dangerous,” Verde said.

“Do you think the current law allows school districts to hide predators?” KHOU 11 Investigates asked.

“I think it makes it easier to do so,” Verde said. “When you have a law in place or a rule in place that has the effect of blocking an investigation, I think the potential for abuse or for concealment is very high.”

It's a potential that disgusts Randy Burton, founder of the advocacy group Justice for Children.

“You think the school is going to be in your corner. I’m here to say that’s not the case,” Burton said. “When push comes to shove, they are going to be protecting the school and their colleagues before they are going to be protecting your child.”

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Burton, a former prosecutor, believes it’s time lawmakers get rid of immunity in student-teacher sex cases.

“School know this, if I hit them with this God-awful lawsuit, based on these terrible facts, the school does this,” he said, thumbing his nose. “They know there’s nothing that can be done to them.”

But not everyone thinks holding school responsible for the actions of a bad teacher will make a difference.

The Texas Association of School Boards represents more than 1,000 districts. In a statement to KHOU 11 Investigates, a spokesperson wrote, “Holding a school district financially responsible for the secret, unauthorized, criminal acts of an employee would punish everyone. When school funds are used to pay damages in a lawsuit, the taxpayers foot the bill.”

The group also points out that school employees are already legally required to report abuse.

But Verde believes that’s not enough.

“The evidence of that is the fact that we continually see these stories in the news,” Verde said. “To me that indicates a problem, a real problem within the school system that's not being addressed.”

Texas Sen. Paul Bettencourt, who last legislative session sponsored tougher penalties for administrators who don’t report teachers accused of abusing students, says the message to school districts should be clear.

“It’s abhorrent behavior,” Bettencourt said. “It needs to be stamped out.”

The Harris County lawmaker says if school districts don’t want to face financial penalties, they need to figure out how to stop the problem of teachers molesting students.

“If the education establishment doesn’t it, then we’ll have to pass laws that make them get it,” Bettencourt said.

In the meantime, a KIPP student’s parents wonder if they’ll ever get answers in their daughter’s case.

“There’s more protecting for the schools than there is for the kids,” the girl’s mother said. “And the schools are there for the kids.”

“We just want to know what happened, and you’re preventing it,” added the girl’s father. “Why? Why are you so scared of an investigation? What are you scared it’s going to reveal?”

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In a statement, KIPP didn’t address why it went to court to block that investigation. Instead, the superintendent wrote, “We continue to be outraged by the allegations which, if proven true, are inexcusable. We stand together with our families and the community in demanding that justice be served against Mr. McElveen."

Response: KIPP statement on Brandon McElveen

The guidance counselor is awaiting trial on three counts of indecency with a child. He has not been criminally charged with anything connected to the girl whose parents hired Verde. They say that’s because, while a police report has been filed, she’s scared to talk about details of what happened to her.