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James Himmelsbach had a reputation for making unwanted advances toward his female co-workers at Carmel Creek Elementary School and intimidating those who challenged them. He would place his hands on their waists at the copy machine and growl at those who wore dresses and skirts on campus, they told district investigators.
“Tell me you wouldn’t hit that if you were younger?” Himmelsbach said about one women wearing a skirt in the staff lounge, one employee recalled. “I bet she hasn’t been laid in a while. She probably needs a good screwing,” he said about a different teacher, another reported.
Multiple employees came forward to the Solana Beach School District in June 2013 about Himmelsbach’s behavior, and several said they feared him. One said she believed Himmelsbach “played by different rules” and “struts around school believing the district can’t touch him.” Another said she felt bullied when he confronted her and said, “If you have a problem, don’t go tattling. Come to me.”
Himmelsbach denied most of his co-workers’ claims in the district’s investigation, but admitted using foul language in front of other staff and calling a student “mamma” and “baby.” Those words were part of his vernacular, he said, and not meant to be denigrating.
Himmelsbach did not respond to interview requests from Voice of San Diego.
The district investigated claims that he repeatedly asked female employees on dates, engaged in unwelcome physical contact, made inappropriate comments about his sex life, female bodies and physical appearances and retaliated against employees, according to district records obtained by VOSD. Instead of going through the costly and lengthy process of firing Himmelsbach, district officials struck a deal for him to retire early. Next, they reported the misconduct to the state Commission on Teacher Credentialing, as required by state law.
More than four years later, the committee revoked Himmelsbach’s teaching credential. But during the four-year gap, Himmelsbach went on to work in other classrooms. Between January 2015 and June 2017, he did occasional work as a substitute teacher in the Del Mar Union Elementary School District.
The four-year gap between Himmelsbach’s departure from the district and the revocation of his credential was long, but not unique. Educators regularly stay in the classroom for two and a half years or more – the median is 888 days – while the slow adjudication process of determining whether to revoke their credential goes forward. This years-long process plays out after teachers have already been investigated and forced to leave one district. In the meantime, they find work in others, often as substitute teachers.
Just three months ago, California’s Commission on Teacher Credentialing had 2,954 open cases – not all of which included misconduct in the classroom – according to its most recent workload report. Many of those teachers have already been investigated in one district and may be teaching in others, while the commission investigates them again. In some of the worst cases, teachers who have harmed children remain in the classroom for months or years.
For more than a year, Voice of San Diego has been investigating school district records of substantiated instances of teacher misconduct. The records include several instances in which teachers were forced out of their jobs, but held onto their active credentials for months or even years at a time.
A gap of 888 days may seem long, but California has significantly reduced the amount of time it takes to revoke a credential in recent years. The state commission has indicated it is not likely to trim the time any further, especially since the number of cases the commission sees has risen in recent years.
No matter how efficient the revocation process becomes, there will always be some lag while officials decide whether to revoke an educator’s credential.
Is there any way to keep known predators out of the classroom during that time?
California legislators tried and failed to address the issue for the most egregious cases of sexual misconduct and child abuse last year. A proposed law, known as the Sexual Abuse-Free Education (SAFE) Act, would have forced potential employers to check in with past employers about serious misconduct. And it would have required those past employers to reveal the results of their investigations.
The bill would have likely kept Josh French out of the classroom. In 2015, Escondido Union School District officials investigated French over an accusation that he raped an eighth grade student. After a yearlong investigation, they found sufficient evidence to believe he committed the crime. But after he was forced out at Escondido, French went on to teach as a substitute in Vista Unified and Murrieta Valley Unified School Districts while his credential was in the process of being revoked.
Vista Unified and Murrieta Valley Unified officials wouldn’t verify whether they checked in on French’s work history at Escondido Union. Nothing would have prevented them from doing so. School districts can ask any past employer, including other school districts, about an employee’s past performance. Many consider it best practice to do so. In French’s case, Escondido Union would have been able to reveal that it had investigated French, that he no longer worked there and that his case file had been passed on to the credentialing committee for review. The SAFE Act would have ensured the district could have revealed a full report of its findings.
California requires school districts to complete a criminal background check before hiring an employee. These background checks net convicted abusers, but they also allow many to slip through the cracks, said Terri Miller, president of the non-profit group SESAME, or Stop Educator Sexual Abuse, Misconduct and Exploitation. Miller’s group helped write the SAFE Act. “If the victim is young and the parents don’t want to put the child through testifying. then district attorneys usually have to drop the case. That doesn’t mean the person didn’t offend,” she said.
“Too many teachers are passed quietly from district to district, even though they have already been investigated, and their district found that they committed abuse, but they were never charged with a crime,” Miller said.
The federal government insisted, as part of the 2015 Every Student Succeeds Act, that states pass laws to prevent situations like these from happening. If they don’t, the federal government may withhold funding or take other enforcement action, according to a letter published by the Department of Education last summer. But so far, just a handful of states, including Connecticut and New Jersey, have passed laws that force schools to inquire about whether educators have a history of abuse.
California’s SAFE Act died last year after it was opposed by the state’s teachers’ union and the American Civil Liberties Union. Those groups, and some other school worker unions, argued the law abridged due process. During a hearing in the Senate education committee last April, representatives from the groups said they theoretically supported the idea of keeping egregious abusers out of the classroom while their credentials were tied up in appeals. But they couldn’t support the plan as it was.
Those groups worried that a school district’s inquiry would not meet the same standard as a law enforcement investigation, or that school districts would be forced to disclose inconclusive findings. Sen. Mike Morrell, a Republican who introduced the bill, said he plans to bring it back for consideration again this year.
But even the SAFE Act would not have had a large impact on Himmelsbach, the educator accused of sexual harassment at Solana Beach. Solana Beach officials substantiated the claims against him. But in order to help speed his departure, they cut a deal with him instead of firing him. If he would voluntarily retire, they would agree not to tell any potential employers about the blemishes on his record.
School districts often reach these deals because firing a teacher takes lots of time and costs lots of money. Often it is much easier to make an agreement to not disclose findings of misconduct to future employers if the employee will agree to walk away. But doing so leaves future students and colleagues vulnerable.
The SAFE Act would have outlawed resignation agreements in cases of sexual assault against a minor and in cases of child abuse. But it wouldn’t have stopped districts from striking such deals for sexual harassment.
The legislation is also hazy when it comes to teachers who have harmed students. For instance, VOSD uncovered the story of Scott Brady, an educator who Oceanside Unified High School District officials accused of using excessive force to restrain one student and force a banana into the mouth of another. Oceanside officials ultimately concluded that Brady “behaved inappropriately with a student.” Because they did not determine his behavior constituted abuse, the law likely would not have mandated Oceanside report his behavior to any future employers.
Brady went on to work as a substitute teacher in San Diego Unified School District during the two years it took for his credential to be revoked.
Various efforts in recent years have sought to decrease the time it takes to review an educator’s teaching credential. The revocation process is long and complicated. It involves both the California Commission on Teacher Credentialing, which hands down the first decision on credential revocation, and the U.S. Department of Justice, which handles appeals. (Not all cases necessarily go to an appeal.) California has reduced its part from a median 721 days to a median 395 days in the past eight years. Meanwhile, the DOJ currently takes a median 493 days to do its work.
Several years ago, California’s credentialing committee – which is made up of seven appointed volunteers who meet once a month for several days at a time – decided on 45 to 50 cases each month. But then in 2011 a report from the California state auditor indicated the committee needed to improve its practice. The commission now decides 105 cases each month on average, according to last year’s annual commission workload report.
“I would say we think the process we have utilizes the staffing we have efficiently,” said Joshua Speaks, a spokesman for the organization. “We will have to either identify further efficiencies or further the number of staffing.”
The number of cases the commission sees each year is also rising. For sexual crimes alone, there was a 53 percent increase between 2015 and 2018. The growing number of cases could likely increase the credentialing committee’s backlog in future years, leading to even longer processing times.
“Definitively, the Committee cannot simply evaluate much more than 105 cases per month,” a November report on workload and statutory framework reads. “Delaying cases from committee review … may present a significant risk to the safety of school children.”
A backlog of teacher misconduct cases before the commission has affected San Diego schools for years. If a teacher like Himmelsbach decides to appeal the committee’s decision, the commission sends the case over to the Department of Justice to appeal in front of an administrative law judge.
In recent years, the DOJ reduced the number of cases in its backlog, as well. Looking forward, the DOJ hopes to reduce the time it takes to decide each case down to a median 365. CTC does not have a tangible goal, but says it is working each year to increase timeliness on a case-by-case basis.
Even if both agencies manage to reduce the adjudication process to 365 days each, a two-year gap would still exist in the revocation process. It will be up to California legislators to make sure school systems can and do share the information needed to keep abusers, harassers and predators out of classrooms during the interim.