Legal Updates

Parents With A Past: A Challenge For Private Schools

September 2011

While many independent schools faithfully check the criminal histories of their employees, contractors and volunteers, as required by law or internal policy, little guidance exists when an independent school learns that a student’s parent is a registered sex offender. Should the school notify other parents or restrict the sex offender’s access to campus? Unless the school has adopted a policy, or is governed by a state or local law regarding these issues, schools may be venturing into uncharted waters. We recommend that schools anticipate this issue and implement a policy reflecting the school’s desired practices and any applicable governing laws so that the interests of students, parents, and the community are appropriately addressed.

National Sex Offender Registry

Significantly, schools (and others) can readily determine who “has a past” with one click of the mouse. Sex offender registries have been developed over the past 20 years in an effort to protect children and facilitate public notification of dangerous individuals who are released into the community. There is now one national database compiling information from all participating registries.

By way of background, on May 17, 1996, President Clinton signed Megan’s Law, which requires the states to register individuals convicted of sex crimes against children, maintain a public database, and establish criteria for community notification. On July 27, 2006, President Bush signed the Adam Walsh Child Protection and Safety Act, which requires the U.S. Department of Justice to establish a publicly accessible Internet-based national sex offender database. Pursuant to these laws, the Dru Sjodin National Sex Offender Public Website was created; this database allows a user to submit a single national query to obtain information about sex offenders. (It also includes a listing of public registry websites by state, and information on sexual abuse education and prevention.) Thus, if the name of a particular sex offender is known, anyone can search the online databases of all participating states and territories that contribute to the national database with one search, to access that individual’s records.

Because this nationwide database is readily available, schools ignore it at their peril: if checking a parent’s (or other person’s) sex offender records could have prevented harm to a student, the school that failed to check (or act upon) those records could face significant legal liability.

Information On State Online Databases Varies

The national database is a compilation of each online database maintained by the participating states and territories. Accordingly, the information received through a national search will be limited by the information that any given state chooses to disclose on its online database. State laws vary greatly with respect to the amount of information that is revealed through their online databases. For example, in Massachusetts, the Sex Offender Registry Board (“SORB”) only reveals detailed Sex Offender Registry Information (“SORI”) (e.g., a sex offender’s work and home addresses) regarding sex offenders who are classified as “high risk” or “Level 3” offenders on its public website. However, additional SORI (including information regarding Level 2 offenders) is available by visiting local police departments or by submitting a written request to the SORB. Other state online databases may disclose more or less information based on the level or type of the crime. Therefore, it is important to carefully review the scope of the information available in any given state.

Your State May Be Silent On This Issue

Once a school has determined that it may need to address the presence of a sex offender within its vicinity, schools often look to their state or local government for guidance. However, there is significant variation in what (if any) legal restrictions are placed on sex offenders who are released back into the community.

For example, in Massachusetts, unless the courts place restrictions on a sex offender’s whereabouts when he or she is released from custody, it is left to the discretion of the municipalities to dictate whether a registered sex offender is prohibited from residing near (or accessing) a school campus.

At the other end of the spectrum, Illinois law expressly prohibits child sex offenders from residing within 500 feet of a school, playground or any facility providing programs or services exclusively directed toward people under age 18. Further, in Illinois, sex offenders cannot be present in any school building or property, or loiter within 500 feet of school property, without the permission of the superintendent or school board, or in the case of a private school from the principal, unless the child sex offender is a parent of a child at that school and the parent is on school grounds for one of the following reasons:

To attend a conference at the school with school personnel to discuss the progress of his or her child academically or socially;
To participate in child review conferences in which evaluation and placement decisions may be made with respect to his or her child regarding special education services; or
To attend conferences to discuss other student issues concerning his or her child, such as retention and promotion.

Other state laws may expressly prohibit sex offenders from accessing a school campus unless he or she has permission or lawful business there (e.g., attending a public meeting or voting), but leave it up to the school or school district to determine whether a sex offender will have access to his or her child’s school.

Policies In Absence Of Legal Guidance

In the absence of a specific law addressing whether any restrictions should be placed on sex offenders who are released into the community, some schools have developed policies to guide how they will respond to the news that a parent is a registered sex offender. Banning parent sex offenders from accessing schools appears to be the minority view. Rather, many schools have developed policies akin to the law in Illinois. Some of the more common elements of such a policy are as follows:

Limiting access to the school without prior approval.
Approving access only for limited purposes (e.g., transportation, teacher conferences, or school-related activities).
Requiring parent sex offenders to register at the school’s office prior to visiting the campus.
Barring parent sex offenders from all electronic communication with a student other than his/her own child.
Barring parent sex offenders from serving as volunteers (related to the school or school activities) in any capacity.
Directing requests from other parents regarding registry information to the public website or the State or local police department.

In addition, these policies often address how to handle student sex offenders and non-parent sex offenders as well, and clearly define the school’s commitment to the safety of its students.

A common message communicated by these laws and policies is that a parent sex offender should still be able to participate in his or her child’s school experience, as long as the safety of other children is not put at substantial risk. In addition, notifying the community regarding the whereabouts of a registered sex offender should be the responsibility of law enforcement rather than the school itself. In sum, we recommend that each school consider the rights of the parent sex offender and his or her child in balance with those of the rest of the community.

Recommendations For School Principals And Heads Of School

It might not occur to a school to develop a sex offender policy until an issue arises. We recommend that schools be proactive and anticipate these issues so there is clear guidance if and when a sex offender is on campus. The following is a brief list of best practices a school may want to consider:

Review the scope of the school’s background check policies and procedures. Inquire whether the school checks the criminal histories of volunteers and contractors and whether the background checks are national or limited to state records.
Understand that the results of criminal background checks may not be enough. For example, in Massachusetts, a state-run Criminal Offender Record Information (“CORI”) check includes offenses committed in Massachusetts only. That means that crimes committed in other states (including sex offenses) will not be included in a state CORI check.
Ensure that the school is complying with state and federal laws with respect to obtaining the required authorization prior to conducting criminal background checks. These laws vary dramatically from one state to the next.
If the school is already checking the national and state sex offender registries, make sure the school understands the scope of that search. For example, only certain level offenders may be listed online. If the school has not done so already, consider establishing a relationship with the local police department to ensure that the school is receiving the most information possible.
Check with counsel to determine whether any state and/or local laws are in place that restrict the activities of a sex offender on campus.
Consider developing a policy that addresses the school’s commitment to student safety, how the school will communicate safety issues to parents, and how the school will handle parent, student, and non-affiliated registered sex offenders on campus.

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Please feel free to contact any of the attorneys in the Firm’s Education Practice for assistance in developing a sex offender policy or if you have any questions related to criminal background checks or sex offender registry information checks.