How Kevin Jennings Survived

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A few weeks ago, Kevin Jennings was in trouble.

After social conservatives at the Family Research Council had opposed his nomination as director of the Education Department's Office of Safe and Drug-Free Schools earlier in the year, he came under a firestorm of criticism from conservative bloggers and Fox News pundits for counseling an underage student--a 15 year-old boy, it was reported--on a sexual relationship with an older man.

The student sought Jennings's advice in 1988, and, as a young teacher, and a gay man himself who had recently seen a friend die of AIDS, Jennings gave it: "I hope you knew to use a condom."

When this was discovered (from a speech Jennings gave in 2000), it set off an explosion of calls for his resignation. The Washington Times ran an editorial suggesting he was unfit for the job. He had failed to report statutory rape and, in doing so, condoned it, conservative pundits argued. It looked as if Jennings would follow in the footsteps of former green jobs czar Van Jones and former National Endowment for the Arts Communications Director Yosi Sergant--the latest administration appointee to resign amid controversy. In other words, the latest scalp for the administration's critics.

But Jennings appears to have survived. Here's why.

While the fire hasn't completely died down--53 House Republicans sent a letter calling for his job last week--it has certainly lost steam. Jennings is no longer a topic du jour, mostly due to one simple fact: the boy wasn't actually underage.

The liberal media watchdog group Media Matters for America dug up a 2004 letter from Jennings' attorney stating that the boy was actually 16 at the time--the legal age of consent in Massachusetts, where this had taken place--although Jennings had said the boy was 15 in his speech.

According to Media Matters' timeline of events, Fox News then confirmed the boy's age (by contacting him via Facebook). The watchdog group then posted a copy of the boy's driver's license, showing that he had been over the age of consent when Jennings advised him.

Whether or not one agrees with how Jennings handled the situation--a completely separate, ethical question--the boy's age was an important fact. Had the boy been under 16, Jennings would have had different legal responsibilities.
 
Under state law, teachers are considered "mandated reporters" of statutory rape, required to report cases to the Department of Social Services, though not necessarily to police, according to multiple authorities on Massachusetts education law.

If the boy had been under 16, Jennings would have appeared to violate the law, and that would have placed him in a very different situation, politically. With affirmed legal high-ground, one can bet that conservative pundits, bloggers, and political groups wouldn't have backed off in the least--and that the noise surrounding Jennings wouldn't have faded as it has. And the White House would have had a much more difficult time ignoring the calls for resignation.

The boy says he had no sexual contact with the older man, after all, so it's possible the point would have been moot. But, had the "underage" label stuck, attacks on Jennings probably would have resonated louder.

Instead, criticism of Jennings has devolved into a partisan back-and-forth. Without the objective gravitas of Massachusetts law to push it beyond politics, that's where it will probably stay.

The White House has made concerted efforts to ignore Fox News of late, but, in this instance, it may not have been able to. Thanks to that one legal fact--and the efforts of Media Matters in digging it up and pushing it out--Jennings seems to have evaded the conservative attack machine, living to work another day in the Obama administration.

The White House, meanwhile, has avoided handing its critics another victory. Jennings did not become the next Van Jones, and the hated conservative attack machine was stopped. Jennings not only has kept his job, but the administration, at least so far, has avoided what would surely be a public relations nightmare--its third appointee to fall after criticism from the right, raising more questions about the vetting process.

It was a scandal the White House didn't need. Thanks to one year of difference in the boy's age, it may be over and done with soon enough.

Tali Yahalom contributed to this post.

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Chris Good is a political reporter for ABC News. He was previously an associate editor at The Atlantic and a reporter for The Hill.

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