For the first time ever, the recently enacted Every Student Succeeds Act requires states and districts to have policies that prohibit employees from assisting employees who have “engaged in sexual misconduct regarding a minor or student in violation of the law” from getting a new job.
This process is commonly known as “passing the trash” and sometimes occurs when authorities have reason to believe a teacher or other school employee engaged in inappropriate behavior, but not enough evidence to prosecute.
But that new ban isn’t enough to protect children, particularly in light of USA Today’s recent report detailing states’ failures to adequately report and check on the criminal histories of adults hired to work in schools. There still is no federal standard for what type of background checks teachers and other adults who work in elementary, middle and high schools must undergo. In fact, there’s no national mandate that states or districts even conduct them at all, or that people convicted of, say, child pornography, be banned from classrooms. (The 74: 3 Things Every Parent Should Know About USA Today’s Jaw-Dropping Teacher Discipline Investigation)
Legislators and advocacy groups from across the political spectrum have, for various reasons, opposed the idea when it has been raised at different points over the last two decades. The most conservative Republicans see it as an inappropriate federal intrusion into what should be a state responsibility. Unions generally support background checks, but have opposed some broader bills they say don’t give sufficient due process rights and privacy protections. Some progressive legislators and civil rights have opposed proposals that they see as too sweeping in the types of offenses that would bar people from employment, and have similar concerns as unions regarding due process regulations.
Over 20-plus years, Congress has several times considered, and repeatedly failed to pass, bills that would institute any kind of comprehensive national tracking system, requirements for background checks or bans on the re-employment of people convicted of crimes against children:
- 1993 – The National Child Protection Act of 1993 was enacted. It for the first time created a national fingerprint database to track indictments and convictions for child abuse, sexual misconduct offenses and other violent crimes. States were required to report crimes to the database. Private businesses employing child care providers may ask states to check the database as they investigate applicants, but teachers weren’t included, and no entity was required to run a check.
- 1999 – Members of both the House and Senate introduce the School Safety Enhancement Act, a broad school safety bill that would establish a national center for school safety, give grants for school safety programs and allow elementary and secondary schools to contact states to conduct national criminal background checks. It did not receive a markup in either the House or Senate.
- 2003 – Rep. Jon Porter, Republican of Nevada, introduced the Schools Safely Acquiring Faculty Excellence Act. The bill would have banned federal education funding to any state that didn’t share information with national criminal records tracking systems, including the one run by the FBI. A subcommittee held a hearing on the bill, but no further action was taken.
- 2004 – After a mandate from Congress in the 2001 No Child Left Behind law, the Education Department commissioned a report on sexual abuse by educators. That report, which unions and school boards said was overly alarmist, said millions of children were likely affected each year. Author Carol Shakeshaft made several recommendations, including background checks with fingerprinting.
- 2008 – Sen. David Vitter, Republican of Louisiana, introduced the Safety for Our Schoolchildren Act. The bill would require districts to run FBI background checks on applicants, and to report those with criminal records who applied to police. The bill also would ban employment for those convicted of serious violent offenses, and ban the employment of bus drivers convicted of drunk driving or other serious moving violations. Vitter would go on to re-introduce the measure in 2009, 2011, 2013 and 2015. The measure was never considered by a committee.
- December 2010 – The Government Accountability Office, on the request of House Democrats led by then-Education Committee Chairman George Miller, released a blockbuster report detailing 15 case studies of people with histories of sexual misconduct being hired as teachers, contractors or others at schools.
The report found that no federal law regulates the employment of sex offenders in schools, and that there are widely varying policies at the state level regarding background checks and whether past convictions for sexual misconduct bar educators from further employment or require the revocation of teaching licenses.
Miller, in his last few months leading the House Education Committee, introduced a bill, the Protecting Students from Violent and Sexual Predators Act. It would require background checks, including checks of state criminal records databases and the national sex offender registry, and an FBI fingerprint check, for applicants and school employees. People convicted of violent crimes, including violent or sexual crimes against minors, could not be hired.
“The GAO report sent shockwaves through households across the country,” Miller said on the House floor. “We owe it to parents and to the children and to the honorable school officials who follow the rules to pass this legislation. We also owe it to them to send a strong message that people who abuse children or do not do their jobs to keep children safe will face serious consequences.”
The bill passed the House 314-20. It was referred to the Senate but did not pass before Congress adjourned for the year.
- October 2013 – The House again passed Miller’s Protecting Students from Violent and Sexual Predators Act. It passed this time on a voice vote, indicating broad support. The Senate education committee in July 2014 scheduled but ultimately cancelled a markup of the legislation. Again, the full Senate did not take a vote on the measure.
- January 2014 – The GAO released another report on how the federal government can better support states’ efforts to report and respond to sexual misconduct by school employees. This report focused on the fractured federal role — the departments of Justice, Education, and Health and Human Services all play a part — in preventing abuse. It recommended the agencies work together to disseminate information to the states through the Education Department. The watchdog office also recommended that the Education Department better clarify for state and local officials how Title IX, which bans discrimination in education based on gender, applies to the prevention of sexual assaults by teachers and other school staff.
- February 2014 – Sen. Pat Toomey, Republican of Pennsylvania, and Sen. Joe Manchin, Democrat of West Virginia, take to that chamber’s floor to publicly push for a vote on a Senate version of the Protecting Students from Violent and Sexual Predators Act.
The two were brought together on the issue by the story of a teacher who had allegedly molested several boys at a school outside Philadelphia. Prosecutors didn’t have enough evidence to bring a case. Though the district dismissed him, administrators gave him a letter of recommendation. He eventually wound up as a principal in West Virginia, where, in 1997, he raped and murdered a 12-year-old.
“This is more than just a piece of legislation. This is a moral imperative. This is something we know we can do to make our schools safer for our kids, and I think we should do just that,” Toomey said on the Senate floor.
Toomey attempted several times over the next six months to force a floor vote on his legislation. All were rebuffed by both Sen. Lamar Alexander, then the ranking member of the Senate education committee, and then-Sen. Tom Harkin, at the time the committee chairman. Both said they agreed with the goals of Toomey’s bill, but that it should go through the regular committee markup process. Alexander, in keeping with his long-held views about the appropriate role of the federal government in education, said Toomey’s proposal was too large an intrusion into what should be a state decision.
- November 2014 – After more than a year of negotiations, the Senate gave its final blessing to the Child Care and Development Block Grant Act. That bill funds grants to states to help low-income families pay for childcare. For the first time, the program required childcare providers paid under the act to conduct background checks on employees. Toomey placed a hold on the bill — that is, refused to give his blessing to move it more quickly through the Senate’s legislative process to a final vote — because leadership would not hold a vote on a bill that instituted those same requirements on staff at elementary and secondary schools.
“I don't understand why, if it is OK for the Senate and the federal government of the United States to ensure greater security for children [in] day cares, it is somehow not acceptable to provide that same level of security to kids who happen to be a little older,” Toomey said on the floor.
- January 2015 – The issue came to the forefront again as Congress began work on reauthorizing the country’s primary elementary and secondary education law, then known as No Child Left Behind.
The measure considered by the House, ultimately passed by that body in July, included language that mirrored the Protecting Students from Violent and Sexual Predators Act.
- March 2015 – Ahead of committee markup of the No Child Left Behind reauthorization, Alexander, now the committee chairman, introduced a bill that would require states and districts to conduct background checks and bar the employment of individuals who were in violation of those background check requirements. It suggested – but did not mandate – what those requirements should include.
Separately, the Senate was considering a bill to increase penalties for sex trafficking and boost supports for trafficking victims. Toomey submitted the background check language again. Sen. Sheldon Whitehouse, Democrat of Rhode Island, also submitted an amendment that would require background checks and ban “passing the trash” and the employment of people convicted of certain felonies, but would provide a more robust appeal and review process. Alexander introduced the text of his more limited measure as an amendment as well. None of the proposals received a floor vote.
- July 2015 – During floor consideration in July, Toomey again submitted his full bill — including the specific background check requirements, bans on employment of people convicted of specific offenses, and the “pass the trash” language — as an amendment to the bill. It was modified during negotiations, and only the pass-the-trash language was ultimately considered on the floor. That amendment passed 98-0.
- December 2015 – Congress finally passes the Every Student Success Act. The measure included a “sense of Congress” section that said Congress found there are “significant anecdotal reports” that schools and districts sometimes fail to report allegations of sexual misconduct, that those schools and districts will keep the allegations private if the employee agrees to leave, and the practice of withholding that information “can facilitate the exposure of other students in other jurisdictions to sexual misconduct.”