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Letter to the Senate on background checks for school employees

March 10, 2015

Dear Senator:

On behalf of the three million members of the National Education Association and the students they serve, we urge you to help educators fulfill their professional responsibility and moral obligation to keep students safe at all times with common-sense legislation to detect and prevent abuse in schools. Background checks for school employees are a critical part of ensuring that every student has a safe learning environment. NEA supports timely pre-employment criminal background checks by school districts for all school employees who work with children without supervision—school districts should never hire someone who is not qualified to work with students.

It is imperative to have a system of background checks in place. We must effectively address factors that can lead to perpetrators working in schools, as well as ensure that the system does not create false positives or screen out educators who pose no risk to children. NEA supports a system that comprehensively protects our nation’s children and simultaneously maintains employees’ due process and privacy rights.

Specifically, we urge you to take the following positions on criminal background checks for school employees, to be introduced as amendments to the Justice for Victims of Trafficking Act of 2015 (S. 178) when it comes to the Senate floor this week:

  • VOTE YES on the amendment offered by Sen. Sheldon Whitehouse (D-RI)
  • VOTE YES on the amendment offered by Sen. Lamar Alexander (R-TN)
  • VOTE NO on the amendment offered by Sen. Pat Toomey (R-PA)

Votes on this legislation may be included in the NEA Legislative Report Card for the 114th Congress.

While the Toomey amendment is well intentioned, it fails to take steps to truly protect students or implement best practices to strengthen the background check system as a whole. In contrast, both the Whitehouse and Alexander amendments methodically address issues and effect improvements in the background check process—everything from preventing backlogs and ensuring the accuracy of FBI criminal records to providing a robust appeals process and protecting confidentiality

The Whitehouse amendment is true to the principles NEA supports, which include:  

  • Specifying crimes that bar employment. While nearly every state has a comprehensive background check law in place for school employees, the Whitehouse amendment accommodates differences in state criminal laws by prescribing a minimum list of crimes for which states must screen during background checks, and then allows states to screen for other serious crimes. The Toomey amendment uses a rigid list of crimes that may apply to different acts in different states, and may encompass acts that may have no bearing on a particular individual’s fitness to work with children.
  • Utilizing EEOC guidance, state laws, and individualized assessments. U.S. Equal Employment Opportunity Commission guidance—as well as the laws of the majority of states—require that when criminal background checks are used in the employment context, employers must undertake an individualized determination that focuses on whether barring employment for a particular crime is “job related and consistent with business necessity.” The Whitehouse amendment conforms to this guidance, requiring individualized reviews for employees whose records are found to include potentially disqualifying convictions—the same approach already taken by the majority of states. The Toomey amendment does not require individualized reviews and would preempt state laws that do.  
  • Costs and administrative hurdles. The Whitehouse amendment would prevent backlogs by providing time for compliance and initially limiting background checks under the new process to new or current employees who have not already passed a state-mandated background check; existing employees would be screened during periodic rechecks. In contrast, the Toomey amendment would require everyone to go through the process again immediately. Rechecking some three million educators would be costly and could precipitate severe staffing shortages, especially since the Toomey amendment does not allow employees who are appealing false positives to transfer to positions that entail no contact with children. Schools would be devastated if the waiting time approached that endured by applicants for the Transportation Worker Information Credential (TWIC)—currently 75 days or more, according to the Transportation Security Administration (TSA) website.
  • Rooting out child abuse. Incidents investigated by the U.S. Government Accountability Office indicate that it is usually individuals’ failure to understand and comply with existing background check and reporting requirements—not the lack of such requirements—that allow child abuse to take place in a school setting. Therefore, simply instituting a federal background check requirement is insufficient to prevent future incidents. The Whitehouse amendment requires states to prohibit withholding information about allegations of child abuse in school settings, and further requires penalizing withholding of such information at least to the same extent as under mandatory reporting laws. Rather than strengthening state laws that require educators and school officials to report suspected child abuse, the Toomey amendment could encourage blacklisting of any employee merely suspected or accused of misconduct
  • Ensuring confidentiality. The Whitehouse amendment designates a single agency to administer criminal background checks and requires the information obtained to be made available only to the school employee, a designated representative of the school employee, and persons authorized by the state to make employment decisions. The Toomey amendment makes no provisions for protecting the privacy of school employees.

NEA also supports the Alexander amendment, which would:

  • Require state and local educational agencies to conduct criminal background checks for all school employees, allowing them to use proven strategies and best practices to dictate the process
  • Authorize states and local school districts to use federal funding to establish, implement, or improve policies and procedures on background checks for school employees, including access to federal and state data registries, and to train employees on awareness and prevention of child abuse
  • Adopt the 2014 GAO report recommendation to establish the U.S. Department of Education as the lead agency to inform schools of best practices
  • Authorize the U.S. Secretary of Education to make reporting student sexual abuse by school personnel part of an annual “Secretary’s Report Card”

Educators have zero tolerance for any abuse of students—their days are spent educating and cultivating future leaders, protecting our children, and equipping them to navigate the world. Educators also firmly believe that students need a safe and non-threatening environment to be able to learn to their full potential. To help further that goal, we urge you to VOTE YES on the amendments on background checks for school employees offered by Sens. Whitehouse and Alexander.

Sincerely,

Mary Kusler 
Director of Government Relations