Ousted KIPP charter school network co-founder Mike Feinberg should keep his teaching license, two Texas administrative law judges recommended Wednesday, after a two-day hearing earlier this year in which a former student accused Feinberg of sexual assault more than 20 years ago.
The recommendation marks the latest development in a saga that began in February 2018, when Feinberg was fired by KIPP.
The judges’ ruling is only a recommendation to Texas’ State Board for Educator Certification, which will ultimately decide whether Feinberg can maintain his teaching license. Its next regular meeting will take place in July.
The hearing officers wrote that their decision was based on questions about the consistency of the alleged victim’s testimony (who was referred to as ‘Student 1’), the plausibility of the allegation and the difficulty of proving something alleged to have happened so long ago.
“Even if one credits Student 1 with a good-faith belief in the truth of her testimony, there are simply too many inconsistencies within her own recollections, and also with the evidence of what would have been the circumstances surrounding the incident, to establish that [Feinberg] more likely than not abused her sexually,” wrote Beth Bierman and Robert Pemberton.
Feinberg has previously said that he viewed the certification hearing as a forum for countering the allegations against him, which he has denied. There have not been any criminal charges brought against Feinberg.
The decision may make it easier for Feinberg to continue to work in education. He has already been doing some of that with the support of some others in the charter school community: Since leaving KIPP, he has created an organization to help start charter schools and worked as a consultant.
"When judges finally heard my case I was vindicated as I have maintained all along," Feinberg said in a statement Thursday.
The case, though, only examined one of the claims that KIPP said prompted Feinerg's firing. The hearing did not examine two other allegations of sexual harassment by two additional adult KIPP alumni.
“This proposal for decision does not change the circumstances of Mike Feinberg’s departure from KIPP,” said a KIPP spokesperson, referring to the recommendation.
At the hearing, conducted over two days in February, the former student said Feinberg sexually assaulted her twice under the guise of a medical exam. She said she soon told her mother, who confirmed this.
Feinberg’s lawyers called this account into question, presenting witnesses who contradicted the former student’s description of Feinberg’s office, which is where she said the assault occurred. Feinberg’s lawyer also pointed out discrepancies in the woman’s testimony — such as when exactly she had told her mother — and suggested she might have a motive to lie because her brother had been expelled from KIPP.
For Feinberg to lose his license, the state had to show the allegation was more likely than not to be true. The hearing judges concluded that this burden of proof wasn’t met.
“There were only two witnesses who could provide a direct, first-hand account regarding the two alleged sexual-conduct incidents,” they wrote, referring to Feinberg and the former student. “Both witnesses, and indeed others, labored under an inherent and obvious difficulty in recalling facts from approximately two decades ago.”
They also said the events were unlikely to have occurred as described because of the layout of Feinberg’s office. Feinberg, they wrote, “presented persuasive evidence that the work environment surrounding his office would have rendered it highly improbable that he (or anyone else) could have perpetrated the alleged sexual abuse without being detected, or would have dared risk trying.”
News of the recommendation was first noted on Twitter by Robert Pondiscio, a senior fellow at the Fordham Institute.
Feinberg was fired in early 2018. KIPP said in a public letter then that move resulted from an investigation into one claim of sexual assault of a minor as well as two allegations of sexual harassment. Feinberg eventually sued KIPP for defamation in 2019, saying that he wanted to restore his reputation. Details of one of the sexual harassment claims emerged in KIPP’s court filings in response to the suit.
One woman told investigators hired by KIPP that Feinberg had helped her get a job at KIPP before later offering her money in exchange for sex. She hired a lawyer and reached a financial settlement with KIPP Houston. (Feinberg has said he opposed the decision to settle; a former KIPP board member corroborated this claim during the certification hearing.)
Few details have emerged about the other allegation of harassment. KIPP investigators said that woman previously made an allegation similar to the other harassment claim but that she declined to speak to investigators.
The two harassment claims, which Feinberg has previously denied, were not directly at issue in Feinberg’s certification hearing. Feinberg has emphasized that an investigation initiated by KIPP led to his reinstatement, but a later one, led by a Washington, D.C., law firm, ultimately led to his termination.
Feinberg’s defamation suit against KIPP was quickly dismissed by a Texas judge earlier this year. Feinberg told Chalkbeat on Thursday that he has not decided whether he will appeal.