ESSA, Sexual Misconduct, and “Passing the Trash”

hands high fiveThere is a new provision in the Every Student Succeeds Act (“ESSA”) entitled “Prohibition on Aiding and Abetting Sexual Abuse.” It attempts to prevent school employees who have engaged in sexual misconduct with students from being unwittingly passed from one school district to another, a practice commonly referred to as “passing the trash.” Specifically, the provision requires states, state educational agencies and local school districts that receive federal funding to have laws, regulations and policies that prohibit anyone from assisting a school employee, contractor or agent in obtaining a new job if there is probable cause to believe that such person had engaged in sexual misconduct regarding a minor or student in violation of the law. The provision encourages the reporting of sexual misconduct to the proper authorities and effectively discourages the practice of school districts entering confidentiality agreements with sexual predators.

Exactly what is meant by “assisting” in obtaining a new job is not defined. Schools may engage in the routine transmission of administrative and personnel files. Presumably, this would include such things as confirming the dates of employment and position of a former employee.  Would everything beyond such ministerial activities be considered assisting? Certainly a letter of recommendation would likely be within the prohibited activities, but what if the recommendation were for a job outside of education in an environment devoid of children or other potentially vulnerable populations? Other terms in the new law also lack clarity.  What does it mean to have “probable cause to believe” that a person has engaged in “sexual misconduct” in violation of the law?  Is it up to the states and school districts to define these terms?

ESSA details exceptions to the rule of prohibiting assistance with obtaining a new job. The prohibition does not apply if the alleged sexual misconduct in question has been properly reported to a law enforcement agency with jurisdiction AND properly reported to other authorities (such as a child welfare agency), including Title IX authorities AND the reporting resulted one of the following:

–     The prosecutor or police notified the school district that there was insufficient information to establish probable cause that the alleged conduct violated the law;

–     The employee/contractor/agent was acquitted or otherwise exonerated; or

–     The case remains open but there have been no charges filed against or indictment within 4 years of the date of the report.

There is no apparent timeline in which the laws and policies regarding this prohibition are expected to be put into place, nor are there any clear repercussions for failing to do so, short of the theoretical loss of federal funding. Significantly, the law explicitly prevents the Secretary of Education from mandating, directing or controlling the specific measures to be adopted by a state or school district in compliance with the new law. Therefore, it would seem that any consequences for assisting a person known to have engaged in sexual misconduct in obtaining a new job will be determined by the states, state educational agencies and local school districts.   Stay tuned for further guidance.