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Background Checks

By Robert Rothman — April 02, 1986 13 min read

Chicago parents and community leaders staged an angry protest outside the city’s Collins High School last month following reports that two of the school’s teachers had been suspended for allegedly operating an international child pornography ring.

The group’s demand was one heard with increasing frequency nationwide as the incidence of child sexual abuse gains greater visibility: that school officials screen prospective employees to ensure that their backgrounds do not include criminal convictions or histories as child abusers.

''We sent our kids to school for an education-to learn about English, to learn about history, to learn about math-not to be sexually exploited by teachers,” said U.S. Representative Cardiss Collins, after whose late husband the school was named.

Already stung by revelations that five other city teachers and a school janitor had been arrested on charges of child pornography or child sexual abuse, the Chicago Board of Education announced last week that it would check all job applicants to determine if they have criminal records.

Chicago joins a growing list of school districts and states that have moved to require such screening. According to the National Conference of State Legislatures, at least 22 states use or are considering using criminal-background checks to screen school employees, including teachers and other certified personnel.

States have for some time authorized employers to conduct background checks for securities dealers, armored-car drivers, and other occupations deemed sensitive, particularly in regard to the handling of money. But the concern over possible illicit behavior in the backgrounds of teachers is a relatively recent development, reflecting society’s growing anxiety over the sexual-abuse phenomenon.

In 1984 alone, according to state figures, there were some 111,000 reported cases of child sexual abuse nationally, several thousand of which involved an adult unrelated to the child. The total marked a 1,367 percent increase in such reports since 1976.

Howard Davidson, director of the American Bar Association’s National Legal Resource Center for Child Advocacy and Protection, predicts the passage of more employee-screening laws “as incidents involving child abuse become more prevalent.”

But though the potential for sexual abuse by teachers and others who work closely with children has been the primary impetus for background-check legislation, in some states the laws have been extended to include checks for other kinds of criminal records among such noninstructional personnel as bus drivers and janitors.

Nationwide ‘Network’ Studied

In addition, national education groups have begun to seek ways for states to share information unearthed through background checks, making it less likely that those found to have criminal records in one state can be hired in another.

A committee of the National Association of State Directors of Teacher Education and Certification is currently studying a proposal to set up a nationwide computerized network of information on teachers and employees denied certification.

Their effort has the support of the board of directors of the National Association of State Boards of Education and the committee on teacher education of the Council of Chief State School Officers, which met jointly last month to consider the issue.

“They had all heard stories of teachers going from one state, after losing certification, to another and applying for a new certification without informing the state of their past history,” said Donna Duquette, legal conference coordinator for NASBE.

Applicants, Not Employees

But although support for the use of background checks to screen job applicants is strong, the prospect that employed teachers might also come under the reach of new laws has led some to urge caution. Teachers’ unions and civil-liberties groups have charged that while the checks may help protect children, they also may endanger the civil liberties of employees.

“We are opposed generally to the fingerprinting of an entire occupation,” said Steven Brown, executive director of the Rhode Island chapter of the American Civil Liberties Union. “We consider that an invasion of privacy.”

Cecile Gill, chief lobbyist for the Ohio Education Association, said that a proposal pending in the state legislature to examine the criminal backgrounds of school-bus drivers should be limited to prospective employees, not current drivers.

“It’s hard to come out in opposition to background checks for people convicted of felonies,” she noted. “But we have serious reservations about how far the bill goes.”

In Dallas, however, nearly 5 percent of the 888 school-bus drivers working for the Dallas Independent School District have lost their jobs int eh wake of a background check that revealed they had prior criminal convictions, according to a district spokesman.

“We hated to lose 42 drivers,” said Laura Moore, “but we feel we have a safer system because we have weeded out those who posed a potential danger to kids.”

In addition to civil-liberties concerns, others cite the high cost of such programs—often borne in part by low-salaried teachers and other school employees. A 1984 bill mandating background checks in Prince Georges County, Md., for example, was vetoed because it would have cost the county almost $300,000. But last year, the county council passed similar bill, this time requiring those being fingerprinted to pay part of the cost.

But at the time, say critics, when states are moving to improve the salaries and working conditions of teachers as a way of attracting more and better candidates to the profession, adding the costs and indignities of a criminal background check may be counterproductive.

Safeguards and Challenges

Such criticism has helped secure some protective measures for teachers. Most states, for example, have instituted a hearing procedure in which teachers may present evidence challenging a revocation of certification. States have also taken steps to ensure the confidentiality of background-check information.

Because of such measures, few teachers or civil-liberties groups have challenged the background-check systems in court. “There has never been a challenge so far as I know to whether we can constitutionally or legally fingerprint teachers,” said Walter W. Taylor, who runs the screening program in California.

Moreover, said August W. Steinhilber, general counsel of the National School Boards Association, challenges to the practice itself are unlikely to be successful. Job applicants, he said, “have no property right in employment,” and thus could not claim in court that they should have been hired despite the background check.

But the wide variation in state and local statutes—and in enforcement—makes an across-the-board assessment of their legal status difficult, others argue.

Long History, Varied Programs

Though background checks for school personnel have gained momentum in recent years, they are by no means new. New York and California began conducting checks on teachers applying for state certification in the early 1970’s. New York’s program was spurred, said Charles Mackie, state director for teacher education and certification, by a number of reported sexual-abuse incidents involving teachers.

Although California requires teachers to be fingerprinted, which allows their records to be checked through the Federal Bureau of Investigation’s National Crime Information Center, only state criminal records are checked in New York, Mr. Mackie said.

The New York school system requires its teachers to be fingerprinted, he added, and all school-bus drivers in the state are fingerprinted.

Several other states, including Alaska and Kentucky, began requiring background checks in the 1970’s.

But it was in 1982 that the practice gained increased national support. The President’s Task Force on Victims of Crime recommended that year that legislation be enacted “to make available ... the sexual assault, child molestation, and pornography arrest records of prospective and present employees whose work will bring them in regular contact with children.”

Federal Incentive

In 1984, the Congress passed a law providing states a total of $25 million to institute better protective measures against child abuse in day-care centers. That law withheld half a state’s share of funds unless it established by Sept. 30, 1985, a system for checking the background of child-care employees.

With that law as an impetus, at least a dozen states enacted background-check legislation in 1985, according to Susan D. Robinson of the N.C.S.I. While most of the legislation was aimed primarily at screening day-care employees, several states included teachers as well, she said.

But soon after passage of the federal legislation, a report by the inspector general of the Department of Health and Human Services indicated that background checks might have limited utility in removing child-abusers from day-care centers.

The report noted, for example, that between 95 and 98 percent of the cases of sexual abuse of children occur in the home, not in day-care centers or schools. In addition, the report noted, 95 percent of child-care workers are female, whereas between 78 percent and 92 percent of child-abusers are male.

Protection of children, the report concluded, “depends on the education of children, parents, teachers, and other personnel regarding how to deter, recognize, resist, and report sexual abuse.”

“A secondary goal,” it said, “should be to screen child sexual abusers from employment or volunteer work in all child-care programs.”

California Checks

California’s is considered to be the most extensive system of background checks in the country. “We are fingerprinting almost everybody in California who has access to small children,” said Mr. Taylor, the program’s director.

Teachers applying for certification must, at their own expense, submit two sets of fingerprints: one to the F.B.I., at a cost of $12, and the other to the state department of justice, at a cost of $17.50.

The agencies check the prints to determine whether applicants have a criminal record. If an applicant has committed any of about 130 offenses—primarily sex offenses—mentioned by state statutes, he or she cannot be certified, Mr. Taylor said.

If the applicant has a certificate of rehabilitation or release from probation, the state certification committee holds a “fitness hearing” to determine whether to grant a teaching credential.

If a teacher is arrested, the police are required to notify the school district and the state department of teacher certification immediately. The credential is suspended until a court disposes of the charge.

According to Mr. Taylor, in the last four years the state has fingerprinted 65,528 applicants and denied or suspended 1,530 certificates.

In 1984, the most recent year for which figures are available, the state suspended or revoked 356 certificates, Mr. Taylor said. Some 23 individuals were denied certification outright; 62 who had been charged with sex offenses had their credentials automatically revoked; 147 had credentials suspended; and 94 received private admonitions. Another 40 had credentials suspended for miscellaneous reasons, he said.

“From my point of view, it’s good we caught them,” Mr. Taylor said.

Civil Liberties

But two lawsuits in California, neither of which involved teachers, indicate the legal pitfalls of the system, according to civil-liberties advocates. In both cases, private citizens were erroneously investigated by law-enforcement officials because their names appeared on police computer listings.

Background-check legislation now on the Georgia governor’s desk includes a provision aimed at protecting employees from action taken on the basis of such erroneous information. The bill requires any information uncovered by a background check to be certified by a court.

“We wanted to make sure we didn’t have somebody lose a job over a computer error,” said Glenn Newsome, a lobbyist for the Georgia Education Association.

Arrests Versus Convictions

Civil-liberties groups are also concerned about laws in other states, such as Illinois, in which background checks examine arrest records as well as criminal records. The A.C.L.U. contends that this is unfair, since many arrests do not lead to conviction.

Most states, however, limit checks to conviction records, according to the A.C.L.U.'s national office.

In addition, the civil-liberties group questions laws in Pennsylvania and Washington State that require prospective teachers and day-care employees to be checked through state child-abuse registries, which are central files listing suspected child abusers. They are used to identify child abuse within families as a means of protecting children at risk.

Pennsylvania Law

In testimony before the state legislature, the Pennsylvania A.C.L.U. argued that using the registry for employment screening would violate the due-process rights of job applicants, since they would not have been charged with a crime and would not be given an adequate opportunity to defend themselves.

As approved by the legislature, the law provides that information cannot be entered on the registry until after an investigation by the county child-welfare agency. In addition, the law permits an individual listed to request that his or her name be expunged at any time.

In Washington State, the state A.C.L.U. is representing “Jane Doe,” a 19-year-old day-care worker who is suing the state department of social and health services to have her name removed from the state’s child-abuse registry. The civil-liberties group questions whether individuals’ names should be registered without a judicial finding, an argues that the burden of proof should not be on the individual.

‘Grandfather Clause?’

But perhaps the most contentious issue in the debate over background checks is whether state or local school boards should check all employees, or only those applying for certification or jobs.

Teachers’ unions favor limiting the system to prospective employees. Said Michael Simpson, a counsel for the National Education Association: “From an organizational standpoint, the association is more likely to be concerned with current employees. They’re our members.”

Mr. Brown, of the Rhode Island A.C.L.U., said he objected when the state department of education proposed checking current employees, even though there had been no reported incidents of child sexual abuse by teachers. “To extend [the check system] to current employees, who have been working for 5, 10, 15 years, is really an insult, especially when there has been no problem whatever in the state,” he said.

Mr. Steinhilber, of the N.S.BA., said that limiting checks to future employees is a more workable approach for employers as well, because collective-bargaining agreements and tenure may make it difficult to remove a teacher found to have a criminal record.

In Alabama, teachers did not object last year when the legislature passed a law requiring background checks. However, they did object when the department of public safety issued regulations under the new law that required every teacher to be fingerprinted. “There of course was a great uproar about this,” said Mary B. Weidler of the Alabama Civil Liberties Union.

The sponsor of the measure, Representative Paul Parker, insisted that he did not intend that everyone be fingerprinted, and he sponsored a measure this year, supported by the Alabama Education Association, limiting the checks to prospective employees.

Clearinghouse Said Needed

Meanwhile, finding a way to pool the information collected by individual states for use in a nationwide system is seen as vital by some screening advocates.

Currently, some states report when a teacher is denied certification, but not all do, said Austin Hanner, director of teacher education and certification for Arkansas and president of the NASDTEC.

“If a state doesn’t want to hand the information in, there’s nothing that says it has to,” Mr. Hanner said. “We’re back to square one.”

Added Rebecca Yount of the chief state school officers’ group: “The tracking system may be adequate within one state, but across the state line it may be haphazard.”

In addition, Mr. Hanner noted, as long as some states lack a program of background checks, the system will remain imperfect. “We [in Arkansas] will issue a certificate to a person who is a felon,” he said. “Some states won’t.”

A version of this article appeared in the April 02, 1986 edition of Education Week


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