A district report from the Middleton School District found that middle school teacher Andy Harris harassed and retaliated against a teacher that reported his viewing of pornographic images on his school computer where students could see them. However, state Superintendent of Public Instruction Tony Evers sided with an arbitrator’s report in choosing not to fire Harris when it concluded that no harassment took place.

The Middleton School District attempted to fire Harris, but an arbitrator ruled against the district. When the school district appealed to Evers, the superintendent claimed that he had no legal authority to take away Harris’ license for viewing pornography on a school computer because the conduct “did not involve children in any manner” and therefore did not meet the definition of immoral conduct when the incidents were reported.

Republicans in the legislature changed the law but, despite an appeal from Governor Scott Walker’s office, Evers claimed he could not retroactively apply the law to Harris.

The investigation report by the Middleton School District, posted online here with names redacted (warning, disturbing descriptions of pornographic images), continues the debate about Evers’ decision not to try to take away Harris’ teaching license. Evers is currently running for the Democratic nomination for governor, and Republicans have used the Harris case to attack Evers for putting children at risk.

In the report, Harris received 23 emails from his sister with objectionable content on his school computer. Harris shared several of them with the other teachers on the teaching team, including one when the classroom door was open as students passed in the hall. One of the teachers, a member of Harris’ team, who viewed the image with Harris reported the incident to her principal, asking to be kept anonymous.

When the principal didn’t follow up right away, the teacher who reported Harris said she felt “like a rape victim with the frat buddies all ‘in’ on it.”

The principal spoke with Harris, according to the report, and Harris sent the teacher an “apology” email complaining that she went to administration rather than talking to him direct. The teacher, unhappy with the inaction by her her principal and lack of anonymity in the process, then went over the principal’s head to the district superintendent.

Harris then sent an email to another teacher describing how he was “shunning” the teacher who reported him. In another email to another teacher, Harris said he wanted to photoshop the face of the teacher who reported him onto “a playboy pinup” or “a picture from one of those nude fatty sites. Something large and grotesque.”

The teacher who received the email said nothing like the suggested photoshop harassment was ever done.

The school district found that the behavior by Harris of showing the pornographic emails was sexual harassment by the district’s definition.

“Although the initial complaint does not state that it is being filed under the heading of ‘harassment,’ the investigator is required to acknowledge that the criteria for a harassment complain are clearly met in this situation,” The report said.

The investigator’s report also acknowledged that Harris made inappropriate remarks about students, commenting on their chest sizes and suggesting one student learn how to perform oral sex because that’s all she would be good at. While not addressing those remarks, the school’s principal was quoted in the report saying he had heard Harris making inappropriate remarks and that he corrected them by giving Harris, “the evil eye.”

When asked why Evers did not fire Harris given the investigator’s report indicating sexual harassment took place, Tom McCarthy, spokesman for the Department of Public Instruction, said in an email that the report is only the district’s investigation report, “not a legal brief and not free from bias.”

The claims in the report of sexual harassment “could not be substantiated when put under further review” by the arbitrator in the case, according to McCarthy.

“In fact, several of the statements made were actually retracted during the arbitrator’s review of the district’s case,” McCarthy said. However, the charges against Harris were never retracted by the school district. The only retraction was made by the teacher who complained about Harris who said that she had engaged in bawdy banter with the other team members before.

In the arbitrator’s report supplied by DPI, the arbitrator did not find sexual harassment, claiming that the teacher who viewed the image on Harris’ computer had done so voluntarily and had not objected to such images in the past. In addition, the arbitrator dismissed the notion of Harris’ retaliation, saying it was not Harris who was retaliating. The arbitrator claimed it was the teacher who reported Harris who was retaliating, possibly over a confrontation about a social media website, although the district pointed out that the teacher had plenty of opportunities before to retaliate against Harris if that was her motive.

“{The teacher} certainly did not mind getting Harris into trouble, even if she was not retaliating for the confrontation she took from the team in general and Harris in particular over her social media use with students and her absences and other matters that bothered the team,” the arbitrator wrote. “By the time the ‘target’ picture showed up, Harris and {the teacher who reported him} was really not on good terms anyway. Thus, his suggestion in e-mails that he was shunning her was hardly any retaliation. He kept on working with her to fulfill professional obligations.”

The arbitrator also did not take seriously the email from Harris to another teacher about shunning the teacher who reported him and using Photoshop to retaliate. The arbitrator wrote, “Harris blew off some steam about Davis with another teacher, S—– ——-, who taught in another building. They exchanged numerous e-mails, during which Harris wrote about ‘shunning’ Davis because of her complaint to {the principal}.” {Names redacted by RightWisconsin.}

The arbitrator also found that because the teacher had engaged in bawdy banter with the other teammates in the past, it was unlikely she was offended by the photo on Harris’ computer.

“…it would be the height of hypocrisy for {the teacher} to make any claim that she was uncomfortable or harassed by seeing the ‘target’ picture on the computer. The District claims that it is possible for her to have engaged in such sex talk once when she was tight with the team but now as an outcast it’s ok for her to take offense at it. She took part in these activities – viewing inappropriate images, talking trash with the team – for several years and complains only now? That does not square with logic.”

The report by the arbitrator also indicated that the teacher who made the complaint against Harris was the one who left the door open, so it wasn’t Harris that was risking students seeing what was on his computer. (Of course, the teacher had no way of knowing what was on the computer until she actually crossed the room to look at what the other teachers on the team were laughing about.)

Instead of going to the administration, the district superintendent or even the media, the arbitrator said the teacher should have spoken with Harris and the team about the situation and what she perceived to be an inadequate apology.

“I agree with the District that Harris’ apology was pretty weak and hardly an apology,” the arbitrator wrote. “but {the teacher} could have taken it up with Harris or the team. Instead, she pursued her complaint beyond the team, above {the principal} and all the way up to {District Superintendent Donald} Johnson and probably to the local newspaper.”

When asked if an arbitrator today would write, especially in the current environment of awareness of sexual harassment, that the person feeling harassed and retaliated against should go talk to the harasser instead of management. McCarthy replied in an email, “The decision was written in 2014, not the current environment. He’s also not pulling that statement from thin air – it was the district’s policy to take that action.”

McCarthy also said that the arbitrator’s report gives the justification for that decision, the alleged lack of sexual harassment and retaliation.

Alec Zimmerman of the Republican Party of Wisconsin disagreed with McCarthy. “With each new development in this story Tony Evers comes up with yet another excuse to justify his failure to remove a teacher accused of not only spreading pornography and making predatory comments about children, but as we now know also sexually harassing and retaliating against a fellow teacher,” Zimmerman said. “These latest revelations are damning; Tony Evers’ track record of reckless inaction put children and teachers at risk all for the sake of political expediency as he bowed to union pressure. Evers simply cannot be trusted to protect Wisconsin families.”