Published Online: April 21, 1999
Published in Print: April 21, 1999, as Districts Should Improve Background Checks, Lawyers Advise

Districts Should Improve Background Checks, Lawyers Advise


San Francisco

When it comes to employee background checks meant to protect children from sexual abuse, school districts should follow a policy of "do ask, do tell," school law experts say.

Districts can do a lot to improve their background-checking procedures, said A. Dean Pickett, a lawyer in private practice in Flagstaff, Ariz.

"Ask the hard questions," he said.

Mr. Pickett and Thomas W. Pickrell, the director of legal services for the Arizona School Boards Association, spoke at the annual conference of the National School Boards Association's Council of School Attorneys, held here April 8-10.

The two lawyers distributed copies of a three-part Education Week series from last December that concluded that sexual abuse of students by school employees is far more common than is generally perceived and that school officials often mishandle such cases. ("A Trust Betrayed: Sexual Abuse by Teachers," December 1998.)

"What's it going to take to avoid articles in Education Week about the practices of your school district?" Mr. Pickett asked the more than 300 school board lawyers in attendance. "I hope what it does take is officials reading about this and saying, 'Not in our district.'"

Mr. Pickett focused on what districts should ask about prospective employees, both of the applicants themselves and of past employers. He recommends that districts adopt a common application form for all candidates that requests all the information the district needs, not just what a candidate has highlighted on a resume.

"Make clear the consequences of giving incomplete or false information," Mr. Pickett said. His suggested application tells candidates they can be fired, criminally prosecuted, or have their teaching licenses revoked if they give false or incomplete information.

Mr. Pickrell focused on what districts should tell when giving out job references on former employees. Too many districts have resorted to giving so-called neutral references out of a fear of being sued for defamation, he said.

With a neutral reference, districts will confirm a name, dates of employment, and job titles, but they won't comment on the past employee's performance.

"No-comment policies are allowing school districts to officially forget problems they have had," Mr. Pickrell said. "I think we can do better."

Last school year's wave of school shootings is now starting to result in civil lawsuits against districts and administrators.

Lisa L. Swem, a Lansing, Mich., lawyer who defends school districts, said parents of victims of the December 1997 shootings at Heath High School in West Paducah, Ky., have filed a civil suit naming four school board members, six administrators, 17 teachers, four counselors, and a school psychologist.

Three students were killed in a shooting spree carried out by then-14-year-old Michael Carneal, who pleaded guilty but mentally ill last year and was sentenced to life in prison.

The district was recently dismissed from the civil lawsuit, Ms. Swem told the conference. Parents filed a new civil suit last week seeking to hold 25 media companies partially responsible for the shooting spree.

Much of the first lawsuit is based on the defendants' alleged "failure to intercept warning signals" in Mr. Carneal's behavior prior to the shootings, Ms. Swem said. The suit cites Mr. Carneal's poor discipline record and a disturbing series of stories he wrote, among other actions the plaintiffs say were warning signals.

Ms. Swem said the critical lesson of the slayings in West Paducah, Jonesboro, Ark., and elsewhere is that school administrators should take any credible threat of violence seriously.

Many districts, she said, have adopted anonymous "tip lines" and cash-reward programs for students to report any threats of violence made by their classmates.

One thing is certain, Ms. Swem added: Some of the responses to the threat of violence that districts have adopted will end up being tested in the courts.

So-called high-stakes testing of students has been sweeping the nation. R. Craig Wood, a Charlottesville, Va., lawyer, pointed to the recent criminal indictment of the Austin, Texas, school district and a top administrator there for alleged tampering with test information as a sign that the stakes are high for the public schools themselves as well as for their students. ("Austin District Charged With Test Tampering," April 14, 1999.)

Students have challenged such tests and graduation requirements on the basis of the 14th Amendment's guarantee of equal protection and due process of law, Mr. Wood said. One issue so far has been whether students received proper notice about the tests and the consequences of failing them.

Another issue is curricular validity--whether the exams are testing what has been taught in the curriculum.

"If not," Mr. Wood said, "any student who fails that test will have an equal-protection claim against the school district."

--Mark Walsh mwalsh@epe.org

Vol. 18, Issue 32, Page 7

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