22-year ‘Moral Imperative’: All the Times Congress Tried, And Failed, To Protect Kids From Abusive Teachers
The recently implemented Every Student Succeeds Act has set a groundbreaking requirement for states and districts to establish policies that prevent employees who have been involved in sexual misconduct with minors or students from obtaining new jobs. This practice is commonly referred to as "passing the trash" and typically occurs when authorities suspect a teacher or school employee of inappropriate behavior but lack sufficient evidence to prosecute.
However, despite this new ban, it is still not enough to ensure the protection of children, especially considering USA Today’s recent report on the failure of states to adequately report and verify the criminal histories of adults hired to work in schools. There is still no standardized federal regulation on the background checks that teachers and other school staff members must undergo. Additionally, there is no national mandate for states or districts to even conduct these checks or to prohibit individuals convicted of crimes such as child pornography from working in classrooms.
Over the past two decades, legislators and advocacy groups from various political perspectives have opposed the idea of comprehensive national tracking systems, background check requirements, and bans on the re-employment of individuals convicted of crimes against children for different reasons. The most conservative Republicans view it as an inappropriate federal intervention into a state’s responsibility. Unions generally support background checks but have reservations about broader bills that they believe do not offer sufficient due process rights and privacy protections. Some progressive legislators and civil rights advocates have also opposed proposals that they consider to be too broad in terms of offenses that would disqualify individuals from employment, with similar concerns about due process regulations as the unions.
Despite several attempts, Congress has failed to pass bills that would establish any form of comprehensive national tracking system, background check requirements, or bans on the re-employment of individuals convicted of crimes against children:
1. In 1993, the National Child Protection Act created a national fingerprint database to track child abuse indictments and convictions, but it did not include teachers or require any entity to conduct checks.
2. In 1999, the School Safety Enhancement Act was introduced to establish a national center for school safety, provide grants for school safety programs, and allow schools to request national criminal background checks. However, it did not progress through the House or Senate.
3. In 2003, Rep. Jon Porter introduced the Schools Safely Acquiring Faculty Excellence Act, which would have withdrawn federal education funding from states that do not share information with national criminal records tracking systems. Although a subcommittee held a hearing, no further action was taken.
4. In 2004, the Education Department commissioned a report on sexual abuse by educators as mandated by Congress in the No Child Left Behind law. This report recommended background checks with fingerprinting but faced criticism from unions and school boards for being alarmist.
5. In 2008, Sen. David Vitter introduced the Safety for Our Schoolchildren Act, which required districts to conduct FBI background checks and report applicants with criminal records to the police. The bill also banned employment for those convicted of serious violent offenses and bus drivers with convictions for drunk driving or other serious moving violations. However, the bill was never considered by a committee despite multiple reintroductions in subsequent years.
6. In December 2010, the Government Accountability Office released a report, requested by House Democrats, detailing 15 case studies of individuals with a history of sexual misconduct being hired in schools. The report highlighted the lack of federal regulation on the employment of sex offenders in schools and the inconsistent state policies on background checks and revocation of teaching licenses for individuals with past convictions for sexual misconduct.
In his final months as Chairman of the House Education Committee, George Miller introduced the Protecting Students from Violent and Sexual Predators Act, which required background checks, including checks of state criminal records databases and the national sex offender registry, as well as FBI fingerprint checks for applicants and school employees. The bill prohibited the hiring of individuals convicted of violent crimes, including violent or sexual crimes against minors.
Despite these efforts, a comprehensive national system for tracking the employment of individuals with criminal records, standardized background check requirements, and bans on hiring individuals convicted of crimes against children remain absent.
The House of Representatives approved the bill with a vote of 314-20. However, it did not pass in the Senate before Congress adjourned for the year.
In October 2013, the Protecting Students from Violent and Sexual Predators Act was passed by the House once again, this time with overwhelming support. The Senate education committee scheduled a markup for the legislation in July 2014, but ultimately canceled it. The full Senate did not vote on the measure.
In January 2014, the GAO released a report on how the federal government can better assist states in addressing sexual misconduct by school employees. The report highlighted the fragmented federal role in preventing abuse and recommended that the relevant agencies collaborate to share information with the states. The Education Department was also urged to provide clearer guidance on how Title IX applies to preventing sexual assaults by school staff.
In February 2014, Senators Pat Toomey and Joe Manchin advocated for a Senate version of the Protecting Students from Violent and Sexual Predators Act. Their motivation stemmed from a disturbing case where a teacher in Pennsylvania allegedly molested multiple students. Although there was insufficient evidence to prosecute the teacher, he was given a letter of recommendation by administrators and went on to commit a heinous crime in West Virginia.
Toomey emphasized the moral imperative of passing the legislation to ensure safer schools for children. Despite his efforts to secure a floor vote, both Senator Lamar Alexander and Senator Tom Harkin, ranking member and chairman of the Senate education committee respectively, agreed with the bill’s goals but maintained that it should undergo the regular committee markup process. Alexander, adhering to his beliefs about the federal government’s role in education, believed the proposal exceeded the appropriate level of intrusion on states.
In November 2014, after more than a year of negotiations, the Senate finally approved the Child Care and Development Block Grant Act. This legislation provided grants for childcare to low-income families and introduced background check requirements for childcare providers. Toomey placed a hold on the bill because he wanted the same security measures applied to elementary and secondary school staff.
Toomey questioned the discrepancy between securing children’s safety in daycares but not extending the same protections to older kids. This issue resurfaced in January 2015 during the reauthorization process of No Child Left Behind, the country’s primary elementary and secondary education law. The version passed by the House in July included provisions similar to the Protecting Students from Violent and Sexual Predators Act.
In March 2015, Senator Alexander introduced a bill as part of the No Child Left Behind reauthorization, requiring states and districts to perform background checks and prohibit the employment of individuals who violated those requirements. This legislation suggested, but did not mandate, specific requirements for the checks.
Additionally, the Senate was considering a bill to address sex trafficking penalties and support victims. Toomey once again proposed the background check language. Senator Sheldon Whitehouse also submitted an amendment to require background checks and prohibit the employment of people convicted of certain felonies, but with additional appeal and review processes. Alexander introduced his more limited measure as an amendment as well. However, none of these proposals were granted a floor vote.
In December 2015, the Every Student Success Act was successfully passed by Congress. This comprehensive measure contained a specific section known as the "sense of Congress," which highlighted the findings of Congress regarding the improper handling of sexual misconduct allegations in schools and districts. Congress recognized that there were substantial anecdotal reports suggesting that some schools and districts fail to report such allegations. Furthermore, it was observed that these institutions tend to keep the allegations confidential if the accused employee agrees to leave. This practice of withholding information was identified as potentially enabling the occurrence of sexual misconduct incidents involving students from other jurisdictions.
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