A recent ad from the Republican Party of Wisconsin goes after Democratic gubernatorial candidate Tony Evers for failing to commence revocation proceedings against Andrew Harris, a Middleton-Cross Plains teacher who viewed pornographic images on his school computer. Evers, the Superintendent of Public Instruction, claims he was powerless, going so far as to claim that seeking revocation would have been “breaking the law.”

This last claim is ridiculous. Evers would have broken no law by attempting to revoke Harris’ license. In fact, Evers would have had a plausible argument in support of revocation. He might not have prevailed in court had the decision been challenged, but the argument could have been made. Evers made a choice. He decided not to go after a teacher who had viewed pornographic images on his computer, shared them with at least one other teacher and who was alleged to have made sexual remarks about middle school students. His claim that he had no choice is wrong. Here’s why.

The decision to start a legal proceeding is usually a matter of assessing probabilities. Very often, a legal claim – in this case whether a teacher’s license can be revoked for viewing porn at school – is neither clearly right nor clearly wrong. Evers, who had to decide whether to try to take this teachers’ license, had to decide whether the he had a plausible argument in support of revocation, not whether revocation was clearly required. He could then decide whether the need to get such a teacher out of the classroom was worth the effort. He had to make a choice.

At the time of the Harris incident as now, a teacher’s license could be revoked for ‘immoral conduct.” At the time, however, immoral conduct was defined as “conduct or behavior that is contrary to commonly accepted moral or ethical standards and that endangers the health, safety, welfare or education of any pupil.” After this incident, the legislature changed the law to make clear the viewing pornographic material at school constituted immoral conduct for revocation purposes, the matter was less clear at the time. While no one seems to have doubted that viewing pornographic materials was contrary to commonly accepted moral or ethical standards, the question was whether Harris had endangered “the health, safety, welfare or education of any pupil.”

Evers’ argument seems to be that teachers can engage in immoral conduct on school property as long as it does not directly impact students and students have not seen it and, perhaps, would have been unlikely to see it. Perhaps. But a credible argument can be made that this goes too far. Conduct that presents a risk of discovery or that is incompatible with teaching middle school students might very well be said to “endanger” those students. While prior case law has called into question (although the Supreme Court has not decided) whether a teacher’s license can be revoked simply because he or she has done something away from school that is incompatible with being a good “role model,” behavior at school presents a different level of risk. Imagine – well, you don’t have to because it has happened – teachers who have had sex in an unused classroom after hours. Imagine teachers who convened a clandestine Klan meeting in the teachers’ lounge. Is revocation impossible because no student has happened along?

Although efforts by the Middleton-Cross Plains school district to fire Harris were unsuccessful, Evers’ was free to start revocation proceedings. He might not have been successful, but there was a plausible argument in support of revocation. Evers chose not to proceed. To respond to the Republican Party ad, he ought to defend that choice and not deny that he made it.

Rick Esenberg Rick Esenberg is President and General Counsel of the Wisconsin Institute for Law & Liberty. The opinions expressed here are his own.