Study of State Policies to Prohibit Aiding and Abetting Sexual Misconduct in Schools

Prepared for: U.S. Department of Education Office of Elementary and Secondary Education

In 2015, Congress added a provision in the reauthorization of the Elementary and Secondary Education Act of 1965 (ESEA) to help protect students from sexual abuse and misconduct in schools. ESEA Section 85461 requires states to have in place laws or policies that prohibit schools, local school districts, or state education agencies (SEAs) from assisting or “aiding and abetting” school staff in obtaining a new job if they are known or believed with probable cause to have engaged in sexual misconduct with a student or minor in violation of the law. The provision requires laws and policies that prohibit aiding and abetting school employees and other school staff with access to children, including contractors and agents (e.g., volunteers). Section 8546 does not define what constitutes “assisting” or “aiding and abetting” and prohibits the Department from mandating or prescribing how states and districts respond
to the requirements of Section 8546. The law applies to every state, SEA, or local school district that receives ESEA funds.

This study examined states’ development and implementation of laws and policies to prohibit aiding and abetting educator sexual misconduct in schools. The study also sought to describe the challenges states have encountered in implementing the requirements of Section 8546 and how they have addressed these challenges. The Department did not undertake this study to determine the extent to which each state is complying with Section 8546. Rather, the Department sought to understand how states are addressing implementation of the provisions in Section 8546 in order to inform the Department’s technical assistance efforts to help SEAs with this section of the law. The study addressed four main questions:

1. To what extent do states have laws, regulations, codes of ethics, and/or policies that prohibit assisting or aiding and abetting the employment of school staff, contractors, or agents who have engaged, or where there is probable cause to believe they have engaged, in sexual misconduct with a student or minor?
2. How did states develop laws, regulations, codes of ethics, and/or policies to address Section 8546?
3. How are SEAs implementing laws, regulations, codes of ethics, and/or policies that prohibit aiding and abetting?
4. What challenges have SEAs faced in implementing state laws or policies required under Section 8546?

Key findings from the study include the following:

• As of October 2020, all 51 states required criminal background checks, and 35 states had adopted at least one other provision that could help prevent school personnel who are known or believed with probable cause to have engaged in sexual misconduct with a student or minor from obtaining new employment in education.
• Nineteen SEAs reported developing new or revising existing laws and policies in response to Section 8546, and 15 worked with other agencies and organizations to do so. These agencies and organizations include the state board of education and the state legislature.
• Nearly half of SEAs reported providing guidance and support to help districts implement state laws and policies related to aiding and abetting.

Methods

The study team conducted a systematic document review of the publicly available laws, regulations, and codes of ethics that prohibit aiding and abetting in the 50 states and the District of Columbia. Because SEA staff are responsible for overseeing implementation of ESEA provisions, the study team also interviewed SEA representatives6 to document how states had developed and implemented the laws and policies that prohibit aiding and abetting and how they had communicated the requirements of those laws and policies to districts and schools and supported their implementation. Forty-eight of the 51 states (94 percent) participated in interviews. In addition, these 48 states also verified the results of the document review by reviewing the text of state laws and policies compiled by the study team and confirming in writing that the provisions identified were complete, with no relevant laws or policies omitted, and also accurately categorized. This report describes the results of the analysis of data collected from the document reviews in all 51 states and interviews in 48 states. This report on state laws and policies to prohibit aiding and abetting is limited to those provisions governing employers and prospective employers. Although some states have laws and policies requiring mandatory reporting, as well as laws and policies governing investigations of sexual misconduct and requirements for training, these laws and policies are not described here.

Summary of Findings

State Laws and Policies Prohibiting Aiding and Abetting

States vary in the number and types of provisions included in their laws and policies prohibiting aiding and abetting sexual misconduct. For example, some but not all states require prospective employers to contact prior employers for information about an applicant’s certification status. Similarly, some but not all states prohibit employers from engaging in practices that suppress information about incidents or allegations of sexual misconduct. Across the 51 states in the study, the number of provisions included in state hiring and disclosure laws and policies ranged from one in one state to as many as 13 in another.

Hiring practices

• All 51 states require prospective employers to conduct criminal background checks, and almost all (46 states) fingerprint all job applicants.
  • Nearly all states require prospective employers to both check the criminal backgrounds (51 states) as well as fingerprint job applicants (46 states).

• Twenty-seven states have laws and policies requiring prospective employers to check an applicant’s employment history, certification status, employment eligibility, and/or disciplinary status.
  • Of these 27 states, 19 have laws or policies requiring employers to request information (e.g., personnel files, employment history) from an applicant’s current and former employers; 14 require employers to check an applicant’s eligibility for employment or certification in and across states, and 11 require applicants to disclose information regarding investigations or disciplinary actions related to sexual abuse or misconduct.

• Eighteen states have at least one provision requiring job applicants to provide authorizations or written statements to prospective employers regarding their eligibility for employment in schools.
  • Of the 18 states, 14 require job applicants to provide written authorization for current and former employers to disclose information about the applicant and the applicant’s employment records. In addition, some states require job applicants to provide written statements indicating whether they have (1) been the subject of a sexual abuse or misconduct investigation (10 states); (2) been disciplined, discharged, non-renewed, asked to resign, resigned, or separated from employment (9 states); or (3) had a license, professional license, or certification suspended, surrendered, or revoked while allegations of sexual abuse and misconduct were pending or due to a finding of sexual abuse and misconduct (9 states).

• SEA respondents indicated that the lack of cross-state record-sharing could create problems for employers
  • Several SEA respondents, even in states requiring applicants to disclose information about past investigations or allegations of sexual misconduct, reported struggling to obtain information about job applicants from employers outside their state borders.

Disclosures

• Twenty states have enacted laws or policies that require current or former employers to share personnel information with prospective employers.
  • Of these 20 states, 18 require current or former employers to disclose information to prospective employers about an allegation, investigation, resignation, or termination related to sexual abuse and misconduct. Should a prospective employer make a follow-up request for information, four states require the current or former employer to respond to that request and disclose information.

• SEA respondents noted that statewide databases are a resource for sharing information with prospective employers about disciplinary actions taken against school employees engaged in sexual misconduct.
  • Various statewide databases include a job application data system, a database of disciplinary action maintained by a professional practices office, a teacher certification database, and an online public safety and criminal justice network. State respondents noted that prospective employers can also access information on teachers through the National Association of State Directors of Teacher Education and Certification (NASDTEC) database (NASCTEC, 2021). The NASDTEC, a paid membership association to which 23 SEAs belong, allows states to track disciplinary actions on teacher licenses. Although many SEAs use the NASDTEC database, it lacks some critical information. First, it references only certified employees. In addition, it does not record why employers have taken disciplinary actions against teachers and thus would not disclose a history of sexual abuse or misconduct.

• Twenty states have enacted laws or policies that explicitly prohibit suppressing information regarding school employee sexual misconduct.
  • These 20 states vary in how they prohibit information suppression. For example, 11 states prohibit current or former employers from expunging information regarding allegations or other findings of sexual misconduct from employee records. In addition, several states prohibit the suppression of this type of information through termination/resignation agreements (12 states), severance agreements (9 states), collective bargaining agreements (9 states), or confidentiality or nondisclosure agreements (6 states).

Scope of Employment Activities Regulated by State Law and Policy

• Nine states have laws and policies that regulate multiple aspects of district and school hiring practices and disclosure policies.
  • Nine states have put in place provisions requiring prospective employers to request information from current or former employers regarding an applicant’s eligibility for employment as well as to require written authorization from an applicant for current or former employers to disclose applicant information and records. In addition, these states have enacted multiple provisions requiring current or former employers to share personnel information with prospective employers and prohibiting employers from entering into agreements or private settlements that suppress information about an employee’s background, employment history, and disciplinary status.

• Sixteen states require only criminal background checks.
  • Conducting criminal background checks is the most widely adopted hiring practice (51 states require these) across all states and is the only anti–aiding and abetting practice required by 16 states.

States’ Role in Developing Laws and Policies Responding to Section 8546

The number of states that passed relevant laws or policies responding to Section 8546 has significantly increased since the last systematic review of state laws and regulations, in 2017, when only four of 50 states10 had enacted laws and policies [other than criminal background checks] that reflected the ESEA mandate (Grant, Wilkerson, & Henschel, 2018).

• Nineteen SEAs—or state legislatures—concluded that existing state laws and policies sufficiently responded to the requirements of Section 8546 and that no revisions were necessary.
  • Interview respondents in 19 SEAs reported that the SEA or the state legislature had reviewed existing laws or policies related to hiring practices or disclosures but made no updates in response to Section 8546. Interview respondents reported that their state already had laws and policies in place that were considered sufficient to prohibit hiring practices and disclosure agreements that aid and abet new employment of individuals that had engaged in sexual misconduct.
• Nineteen SEAs responded to the requirements of Section 8546 by revising existing laws and policies, developing new ones, or responding in other ways.
  • Interview respondents in seven SEAs reported their agencies revised existing laws and policies in response to Section 8546; six developed new laws or policies; and two both revised existing laws as well as developed new ones. Four of these 19 SEAs reported other ways of responding to Section 8546. For example, one state had legislation pending that adopted the language of Section 8546, and another had plans to review existing laws and policies to determine whether they sufficiently responded to the requirements of Section 8546.
• Fifteen of the 19 SEAs that developed or revised laws and policies in response to Section 8546 worked with other agencies and organizations to do so.
  • Among the 19 SEAs that developed or revised their laws and policies in response to Section 8546, 15 reported that the process they used involved working with other agencies and organizations. These included the state board of education (10 states), the state legislature (8 states), the state teacher licensing agency (external to the SEA) (4 states), the state school boards association (3 states), the state department of health and human services or child and family services (2 states), and other state agencies or organizations (7 states) such as teacher unions, advocacy organizations, and local school districts.

• Respondents who had helped develop new or revise existing laws or policies in response to Section 8546, or to prohibit aiding and abetting, described a “painstaking,” “intensive” process requiring the involvement of multiple stakeholder groups.
  • Respondents described struggling to write statutory language that would not conflict with other laws and policies or with the needs and requirements of other stakeholder groups. As one respondent explained, crafting legislative language that solves rather than creates problems is a difficult, delicate process. In one state that had successfully developed new legislation prohibiting aiding and abetting, respondents explained that engaging with multiple stakeholder groups early and often in the legislative process ultimately smoothed the way for passage.
• Challenges to state efforts to develop, revise, or adopt laws and policies addressing Section 8546 included stakeholder or legislator pushback and existing privacy laws.
  • Respondents described stakeholder pushback against their efforts to develop laws and policies prohibiting aiding and abetting. For example, respondents in one state reported that some stakeholders argued that “probable cause” is not a criminal offense and therefore should not require revocation of an educator license and prevent future employment in schools. Other reported challenges included privacy laws that prevent districts from disclosing personnel records.

SEA Implementation of Laws and Policies That Prohibit Aiding and Abetting

• Respondents in 32 SEAs indicated their SEA communicates with local districts about the requirements of Section 8546 and/or state laws and policies prohibiting aiding and abetting.
  • According to SEA respondents, 32 SEAs communicate the requirements of Section 8546 and/or state laws and policies prohibiting aiding and abetting to their districts. Of these 32 SEAs, 22 also communicate with charter schools, and 18 communicate with private/non-public schools about these requirements. The district and school personnel with whom SEAs communicate include district superintendents, district or school attorneys, human resources (HR) directors, and school principals. State respondents indicated that communications outreach involves conveying state or federal legislation in plain language, explaining what is required for compliance, and describing what policies should be in place in the district or school.
    
    Respondents in some SEAs indicated that state agencies or organizations other than the SEA, such as school boards associations and professional standards boards, communicate the requirements of state laws and policies, including those related to Section 8546, to districts. Although many local districts subscribe to state school boards associations, some respondents reported that smaller districts in their states might not pay for membership and therefore would have no access to information from these associations about Section 8546 requirements.
    
    The frequency of reported communications related to the requirements of Section 8546 and/or aiding and abetting laws ranged from only once following the passage of Section 8546 legislation to twice a year. Vehicles for communicating requirements of Section 8546 include conference presentations, state association meetings, administrator memoranda, newsletters, automated broadcasting systems, and email, according to SEA respondents.

• Twenty-one states provide guidance and support to help districts implement state laws and policies related to aiding and abetting.
  • Respondents in 21 SEAs reported that their agency provides written guidance, model policies, and trainings to help districts implement state laws and policies pertaining to aiding and abetting sexual misconduct. Respondents in 14 SEAs reported that their SEA does not provide implementation assistance to districts, and respondents in another 12 SEAs did not know. Finally, a respondent in one SEA indicated that a regional educational service unit, not the SEA, supports local implementation of laws and policies related to aiding and abetting.
    
    Other agencies or associations also support districts in implementing laws and policies related to Section 8546, according to SEA respondents. These include school boards associations, principals and superintendents associations, local district consortia, departments of human resources, child and family services, and law enforcement. According to SEA respondents, support provided by these agencies or associations consists primarily of trainings concerning hiring practices, mandatory reporting, and investigations.
• Eighteen SEAs monitor district compliance with state laws or policies prohibiting aiding and abetting sexual misconduct.
  • Monitoring in these 18 states usually comprises either assurances or policy audits, which SEAs use to confirm the presence of policies that address Section 8546 requirements and/or state laws and policies prohibiting aiding and abetting. In addition to assurance documents, SEA respondents noted that their agencies also monitor districts through accreditation audits, which typically are examinations of district policies and would include anything pertaining to aiding and abetting. As one state respondent explained, SEA compliance monitoring includes ensuring that districts conduct background checks, confirm job applicants’ licensure and certification status, and properly report and investigate incidents of sexual misconduct.
• Thirty-three SEAs document district complaints and/or incidents of sexual misconduct.
  • According to interview respondents, two-thirds of the SEAs (33 states) document district complaints and/or incidents of sexual misconduct and eight SEAs do not. Respondents in seven SEAs did not know whether their SEA documents district complaints and/or incidents of sexual misconduct.
    
    SEAs use licensure and certification databases as well as databases documenting investigations to collect information about complaints and/or incidents of sexual misconduct. SEA respondents primarily described documenting formal complaints or incident notifications received through mandatory reporting requirements in the state. Most states reported documenting complaints for certified, but not non-certified staff.11 Some respondents reported that although their SEA does not track complaints and/or incidents of sexual misconduct, other state agencies do. For example, in some states, the professional standards board or agency overseeing educator licensing is responsible for documenting complaints and/or incidents of sexual misconduct.

Summary and Implications

This study examined the status of state laws and policies related to the requirements of Section 8546 as of October 2020 and how SEAs are supporting districts to implement the requirements of state laws and policies prohibiting aiding and abetting. Respondents suggested a few ways in which the U.S. Department of Education could help them respond to the requirements of Section 8546.

• Respondents in 19 SEAs would welcome efforts by the Department to vet and share examples of policies and practices other states are using to address the requirements of Section 8546.
  • Respondents were interested in model state and local education agency (LEA) policies, promising practices, and guidance documents. SEA respondents said they value learning from peers, while also valuing Department perspectives on what is worth replicating. Many of these 19 respondents were also interested in examples of practices and guidance that other states use to ensure Section 8546 requirements are being met. Some respondents pointed to the range of capacity among SEAs, noting that it is challenging and inefficient for every state to respond to Section 8546 in isolation. For example, SEA respondents expressed interest in knowing how different states obtain employment information from other states, use subpoena power for investigations, use a state licensure database, or collect employment and misconduct information from LEAs.
• Respondents in 11 SEAs expressed a need for clearer definitions and guidance from the Department regarding Section 8546.
  • Respondents in all 11 SEAs would welcome a formal guidance document, such as a “Dear Colleague” letter or a Frequently Asked Questions (FAQ) page, clarifying what specifically the law requires, such as how to define “assisting” and “probable cause.” Respondents in two SEAs requested guidance that could be disseminated to other audiences, such as licensing bodies external to the SEA, other SEA divisions, superintendents associations, school boards, district human resources staff, and general counsels. Respondents in five SEAs were interested in trainings or training materials, particularly any that could be shared with LEAs, school boards, and superintendents associations. A respondent in one SEA said the SEA needs clarity about the “probable cause” language in Section 8546, which is not common in civil legal contexts in the state.

• SEAs need help with cross-state information-sharing; respondents in six SEAs proposed a national database of school employees managed by the federal government.
  • When asked about needed supports, respondents in six states explicitly indicated a desire for a national federal database that generates free, accessible information about the employment histories of all school staff; their eligibility for employment based on their certification status; any disciplinary actions or findings related to abuse, neglect, or sexual misconduct; and their criminal background. Indeed, SEA respondents reported that cross-state communication related to Section 8546 can be challenging and time-consuming. While many SEAs use the NASDTEC database, it references only certified employees, is a voluntary, paid membership organization, and does not reveal why disciplinary actions were taken against teachers, and therefore, would not disclose an applicant’s history of sexual abuse or misconduct involving a student or minor.

Read the full report prepared by the Office of Elementary & Secondary Education