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An increasing number of situations involving the abuse of students at schools have made their way into the media. In some instances, the attacker is a repeat offender who had previously been accused of sexual misconduct at another educational institution. Legislation is being promoted to help prevent schools from passing these teachers onto new institutions.
When a faculty or staff member at a school is accused of sexual harassment or other misconduct, the school is required to initiate an investigation under Title IX of the U.S. Education Amendments of 1972. In some instances, before the investigation concludes, the accused employee may elect to resign and cut ties with the educational institution. These individuals may then go on to seek similar employment at other schools that have no knowledge of the person’s previous behavior because they can say that they resigned for “personal reasons.”
Under some state laws, such as New York’s “Child Abuse in an Educational Setting” statute, public and charter schools are required to report allegations of sexual misconduct between employees and students. In such states, a school’s obligations and protections under the law are fairly straightforward.
The situation becomes more complicated, however, in states where there are no laws that indicate what a school must do. If an ex-employee’s prospective employer calls a school asking for a reference, because there is no law to protect such a disclosure, the principal and school could face charges of defamation if they offer information stating that the employee was accused of sexual misconduct.
To solve this issue, many state legislators are lobbying for laws that would enable schools to disclose information about an individual who was accused of impropriety with students. Many lawmakers drafted bills, some of which are now pending in federal and certain state legislatures, that aim to protect both students and schools by preventing schools from “passing the trash.” This phrase refers to the phenomenon of accused teachers moving on to new schools without any communication regarding their past indiscretions. Presently, New York and New Jersey do not have specific “pass the trash” laws in place.
The individual statutes and bills contain broad provisions that may apply to both public and private institutions. Some of these may be more narrowly tailored and apply only to public schools, or only in situations where an accused faculty or staff member either admitted guilt or was found guilty of a sexual offense.
The nuances found in each piece of legislation can have a great impact on the amount of protection a school has when disclosing information about an employee who has been accused of sexual misconduct. Because the level of protection may vary, principals and educational institutions need to be extremely cautious and seek counsel in these situations before providing a reference or otherwise disclosing information about a past employee.