“Don’t Pass the Trash” Laws & School Districts

If there’s one thing everyone in education can agree on, it’s that protecting students should be a top priority for school districts.

And yet, anecdotes abound about school districts allowing (or even encouraging) abusive educators to resign rather than face an internal investigation or legal action. When this happens, especially when there are confidential separation agreements that include incentives like positive letters of reference or financial benefits, other districts may unknowingly hire that educator, putting more students at risk. It’s a cycle — abuse, dismissal, rehire, abuse — known as “passing the trash,” and there’s no monitoring at the federal level to keep it from happening.

The 2015 Every Student Succeeds Act stipulates that any K-12 organization receiving federal funding should take steps to prevent predatory teachers from finding new jobs in education. But the federal Department of Education has no authority to mandate, direct or control state or district compliance with that provision.

That means it’s up to individual states to step up and enact legislation. S.E.S.A.M.E., an organization focused on stopping educator sexual abuse and harassment, has been actively working with states to adopt the S.E.S.A.M.E. Act. As of July 2019, they have successfully helped four states pass laws modeled after the act in as many years.

So, which states have enacted “Don’t Pass the Trash” laws?

States with “Don’t Pass the Trash” Laws

Most states have laws in place mandating certain requirements in the school district hiring process — background checks, fingerprinting, etc. For the purposes of this post, we’re focusing on states which have enacted laws to take a tougher stance against “passing the trash” to prevent abusive educators who might otherwise slip through the cracks.

Specifically, this post will provide an overview of laws relating to the disclosure of investigations or allegations which may not have resulted in a criminal conviction, or may not have been reported to law enforcement or the State Department of Education at all. For that reason, we will not cover legislation such as the 2017 Texas law that made it a felony for a superintendent or principal to intentionally fail to report a predatory teacher to the Texas Education Agency.

This post is not intended to be a comprehensive legislative review or offer legal advice. We always recommend securing specific legal advice from your district legal counsel or state school board association legal team to ensure that your hiring process is compliant.

Washington – Chapter 28A.400, Section 303, enacted 2004

Washington state was the first to enact a “Don’t Pass the Trash” law. While the state already had laws requiring background checks for school district applicants, the legislature recognized that these checks are generally limited to criminal convictions — letting educators whose actions were never reported to law enforcement slip through the cracks.

So, in 2004, the state determined that “additional safeguards are necessary in the hiring of school district employees to ensure the safety of Washington’s school children. In order to provide the safest educational environment for children, school districts must provide known information regarding employees’ sexual misconduct when those employees attempt to transfer to different school districts.” – Chapter 28A.400, Section 303

The law requires that applicants allow the hiring school district to request information from previous school employers — even those out-of-state — about past sexual misconduct and physical or verbal abuse. The applicant’s current and past employers must provide the requested information and related documentation within twenty business days. Furthermore, the applicant’s employers are protected from civil liability for the disclosure as long as they acted in good faith.

In addition, school districts cannot enter into any contract, separation agreement or bargaining agreement that has the effect of hiding information about misconduct — although information about unsubstantiated allegations can still be expunged.

Oregon – HB 2062; Chapter 93, effective 2010

In 2008, an investigation revealed that 47 Oregon schools had made “Pass the Trash” deals from 2003 to 2008. In response, the Oregon State Legislature passed HB 2062 in 2009, although the law did not take effective until July 1, 2010.

Like the Washington law, HB 2062 mandated thorough applicant vetting and prohibited confidentiality agreements that could sweep misconduct under the rug. In addition, it requires that any school employee who has reasonable cause to believe misconduct has occurred make a report to their supervisor or other individual designated by the school board — and mandates that any staff member or student submitting a report in good faith shall not face retaliation.

Pennsylvania – Act 168, enacted 2014

Act 168 of 2014 requires that candidates go through the Sexual Misconduct/Abuse Disclosure process before they can be hired for a position involving direct contact with children.

Candidates must complete an employment history disclosure form to identify their current employer, all of the school entities they have been employed by, and any employers where the applicant was in a position working with children. The hiring school district must contact each of these organizations directly and send them a form developed by the PA Department of Education — a phone call is not sufficient. Past employers must then disclose information and have immunity from civil and criminal liability unless they knowingly share false information.

The law also bans education organizations from entering agreements that could suppress information related to abuse or sexual misconduct or interfere with reporting.

Connecticut – Public Act 16-67, enacted 2016

In response to the ESSA provision, Connecticut legislators unanimously passed Public Act 16-67 in 2016. The law aims to identify potential predators earlier in the hiring process.

Previously, state law required only that school districts make a good faith effort to contact applicants’ former employers to obtain “information and recommendations which may be relevant to the [applicant’s] fitness for employment.” That statute is still in place, although a “good faith effort” has been more clearly defined. In addition, school districts are required to obtain applicants’ written authorization to communicate with current and former school and child-contact employers and the State Department of Education.

The hiring school district can contact the listed organizations by telephone or written communications, so long as they use the form developed by the State Department of Education. Regardless of the communication method, the current and former employers have five business days to answer three specific questions concerning allegations against the applicant of abuse, neglect and sexual misconduct.

Wisconsin – Act 130, passed Dec 2017

In 2017, Wisconsin passed Senate Bill 253, now known as Act 130. This bill amended a state statute to broaden its definition of immoral conduct to include:

“Assisting a school employee, contractor, or agent to obtain a new job in a school or with a local educational agency, as defined in 20 USC 7801 (30), if the individual knows or has a reasonable suspicion to believe that the school employee, contractor, or agent committed a sex offense, as defined in s. 301.45 (1d) (b), and the victim was a minor or a pupil.” – Act 130

The statute does have two exceptions:

1. If the assistance “is the transmittal of administrative and personnel files”, or
2. If the information the individual knows has been reported to law enforcement, and law enforcement has closed any resulting case or investigation without a conviction.

Nevada – AB362, enacted 2017

The home state of S.E.S.A.M.E. unanimously passed AB362, also called the SESAME Law, in 2017. The law has many characteristics similar to the laws passed in Pennsylvania and Connecticut.

Applicants must disclose past allegations and tell hiring school districts if they left their job (or had a license suspended or revoked) while there were pending allegations. Applicants who provide false information would be guilty of a misdemeanor. They must also provide written authorization for current and previous employers to release information about their employment, so that school districts can share information about sexual misconduct investigations.

Finally, the law also prohibits districts from entering into agreements to keep investigations under wraps.

New Jersey – Safer Schools Bill S414, adopted 2018

On April 11th, 2018 Governor Murphy signed the Safer Schools Bill S414 into law. Under the law, school districts must conduct a thorough review of an applicant’s employment history over the past twenty years. They must contact former and current employers and request information regarding child abuse and sexual misconduct allegations. In addition, the applicant must provide a written statement disclosing any such allegations.

If an employee is dismissed or allowed to resign after an allegation of abuse, the school district must disclose this information when providing references to other school districts or when responding to a potential employer’s request for information about said employee. Otherwise, the district has third-party liability for failure to disclose and is liable for damages.

In addition, education organizations cannot sign termination agreements that prohibit them from discussing or reporting information related to a report of suspected child abuse or sexual misconduct.

Maryland – HB486, enacted 2019

On April 18, 2019, Governor Hogan approved House Bill 486, a law mandating that school districts and other education organizations perform more thorough applicant vetting, effective July 1, 2019. Similar to other laws based on the S.E.S.A.M.E. model, school districts must conduct an employment review beyond a criminal check, and request information from applicants and their previous employers.

Applicants must answer a series of questions about whether they were ever the subject of a child sexual abuse or misconduct investigation or left a district while any allegations were pending, as well as provide a list of current and former employers. These organizations have twenty calendar days to complete and submit the form to the prospective employer.

Implications for School Districts

Despite the differences in language between these laws, they’re all focused on one goal: providing an additional layer of protection for students. Providing a safe, supportive learning environment for every student is of utmost importance, so it’s heartening to see that more states are enacting laws to provide greater transparency between school systems and keep student safety at the forefront.

But the laws do create more paperwork for school districts — both those who need to hire new employees, and those responding to requests for information. If you’re in a state that has implemented a “Don’t Pass the Trash” law, or similar legislation has been introduced, it’s crucial to have a system set up to manage the forms you need to send and receive from other districts about applicants. Plus, it’s important that you can easily access employee records, even for former staff members — you may have an avalanche of requests coming your way, especially if your district is large or has a high turnover rate.

Remember, documentation is key — you need to have records that your district followed the law to the letter.