Screening School Employees

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Screening School Employees to Prevent Educator Sexual Misconduct and Abuse

While the vast majority of school employees are dedicated, caring people who help our children learn and grow, schools in communities all across the country are witnessing an increase in disclosures of sexual abuse of students by both male and female teachers, coaches and other school personnel. In fact, this trend was reported in 2004 by the U.S. Department of Education whose report documented that “more than 4.5 million students (10%) are subject to sexual misconduct by an employee of a school sometime between Kindergarten and 12th grade.” Teachers or coaches were involved in a third of the cases. The remainder included: substitute teachers, bus drivers, teacher’s aides, security guards, principals, counselors, and other school employees.

A 2010 Government Accountability Office (GAO) report confirms that some schools engage in a practice which some legislators have labeled “passing the trash,” that is, the allowing or even encouraging of school employees engaged in sexual misconduct to resign in lieu of an internal investigation or outside legal action. Some schools have provided personal incentives to encourage staff engaged in sexual misconduct or abuse to resign or retire. Confidential separation agreements that include financial benefits,  promises of excellent future letters of reference, and/or the option to surrender one’s teaching certificate in lieu of legal action, are some of the benefits negotiated as part of this practice.

This map provides information about twelve (12) states and D.C., that as of August 2021 have enacted laws to address educator sexual misconduct and abuse by requiring new standard practices to screen prospective employees, and by prohibiting schools from aiding and abetting school employees engaged in sexual misconduct to secure positions in other schools through confidentiality agreements aimed at suppressing information about the misconduct. States that have enacted laws include: Washington (2004), Oregon (2010), Missouri (2011), Pennsylvania (2014), Connecticut (2016), Nevada (2017), Wisconsin (2017), New Jersey (2018), Washington D.C. (2018), Vermont (2018)Maryland (2019) and Colorado (2021). Legislation is pending currently in Massachusetts (2021).  

If your state is not one of those which has passed legislation to prevent educator sexual misconduct and abuse, you can click here to download model legislation regarding screening of school employees. You can share this model legislation with your state legislators and encourage them to introduce it in your state. 

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Screening School Employees

Legend:

◼︎  No legislation has been filed.

◼︎  Legislation introduced and is pending.

◼︎  Legislation enacted and is being implemented.

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Six states, including Pennsylvania, Connecticut, Nevada, New Jersey, Maryland and D.C., have adopted a standard screening tool that requires the applicant to indicate whether he or she:

  1. was subject of an abuse or sexual misconduct investigation (unless allegations were proven false);
  2. was ever disciplined, discharged, non-renewed, asked to resign while abuse or sexual misconduct claims were pending, under investigation or due to a finding of abuse or sexual misconduct; or,
  3. had his or her license suspended, surrendered their license or had it revoked. 

Five states, including Missouri, Pennsylvania, Nevada, New Jersey, D.C. and Maryland require school administrators to contact the applicant’s current and former school employers if the person was in a position directly involved with children.

Six states, including Washington, Oregon, Pennsylvania, Connecticut, Nevada and New Jersey require a written authorization to be signed by the applicant allowing the current employer and previous employer to share employment information, and releasing those employers from liability for providing the information.

Five states, including Washington, Missouri, Pennsylvania, New Jersey and Maryland provide schools with specific protections from civil and criminal liabilities when they share information to other schools about an employee’s sexual misconduct.

Washington, Oregon and Maryland prohibit any collective bargaining agreement, individual employment contract, resignation agreement, severance agreement, or any other contract or agreement in which the employee is allowed to resign or retire in exchange for positive future job references, financial benefits and/or cleansing of the personnel file to eliminate any reference to the misconduct.

The GAO report on cases involving confirmed sexual abuse of students by teachers and other school employees found that the following factors contributed to the hiring or retention of individuals who had engaged in sexual misconduct:

  1. School officials allowed teachers who had engaged in sexual misconduct toward students to resign rather than face disciplinary action, often providing subsequent employers with positive references;
  2. Schools did not perform pre-employment criminal history checks;
  3. Even if schools did perform these checks, they may have been inadequate in that they were not national, fingerprint-based, or recurring; and
  4. Schools failed to inquire into troubling information regarding criminal histories on employment applications.

These practices point to the failure of some schools to uphold their fundamental responsibility to both educate children and ensure their health, welfare and safety. Children who are exposed to sexual misconduct and abuse are deprived of their right to be educated in a safe and supportive environment Research confirms that toxic stress resulting from sexual abuse and other types of child abuse, can impact brain development and, in turn, affect learning and academic achievement. When schools engage in practices that protect abusers rather than children, therefore, they are contributing to the negative physical, psychological, social, and educational impact of sexual abuse on children which often carries throughout their adult lives.

We anticipate additional states will be proposing legislation to address the problem given a new mandatory provision in the “Every Student Succeeds Act” (ESSA § 8038) which bans schools receiving Title II funds from “aiding and abetting sexual abuse;” Section 1 “Ban on Aiding and Abetting Sexual Abuse” reads:

  1. Violation.—It shall be a violation of this Act/ policy for any individual who is a school employee, contractor, or agent, or any State educational agency or local educational agency, from assisting a school employee, contractor, or agent in obtaining a new job, apart from the routine transmission of administrative and personnel files, if the individual or agency knows, or has probable cause to believe, that such school employee, contractor, or agent engaged in sexual misconduct regarding a minor or student in violation of the law.
  2. Penalty.—[The State or agency may chose whichever penalty it wishes—criminal or civil]

Congress itself, in passing the ESSA law issued a “Findings and Sense of Congress on Sexual Misconduct which is included in Section 9201 of ESSA) below.

  1. FINDINGS.- Congress finds the following:
    1. There are significant anecdotal reports that some schools and local educational agencies have failed to properly report allegations of sexual misconduct by employees, contractors, or agents.
    2. Instead of reporting alleged sexual misconduct to the appropriate authorities, such as the police or child welfare services, reports suggest that some schools or local educational agencies have kept information on allegations of sexual misconduct private or have entered into confidentiality agreements with the suspected employee, contractor, or agent who agrees to terminate employment with or discontinue work for the school or local educational agency.
    3. The practice of withholding information on allegations of sexual misconduct can facilitate the exposure of other students in other jurisdictions to sexual misconduct.
  2. SENSE OF CONGRESS. – It is the sense of Congress that –
    1. Confidentiality agreements between local educational agencies or schools and child predators should be prohibited;
    2. Local educational agencies or schools should not facilitate the transfer of child predators to other local educational agencies or schools; and
    3. States should require local educational agencies and schools to report any and all information regarding allegations of sexual misconduct to law enforcement and other appropriate authorities