Legal Updates

Tips For Schools In Handling “Pass The Trash” Issues

Independent schools increasingly face critical challenges in determining how best to protect their students and employees, and the institutions themselves, when employees or students violate sexual or other boundaries.

Over the past few years, a particular focus has fallen on situations in which faculty members or students have committed misconduct (typically, though not always, sexual) at one educational institution and, after moving on to another with positive or neutral references, have engaged in similar misbehavior. Such scenarios are often referred to as “passing the trash.”

Recent controversies over such situations have created pressures on schools to ensure that they appropriately handle student and employee reference and reporting issues. It is critical for each school to develop and implement appropriate policies and practices that comply with its legal and moral obligations in this area.

Background

The landscape surrounding sexual misconduct at independent schools has evolved considerably over recent years. Whereas much of the national attention initially focused on colleges’ and universities’ handling of cases of sexual misconduct, independent schools have come under similar scrutiny in the past few years. As a result, students, families, and alumni, as well as the general public, have come to expect that schools will respond to allegations of misconduct in a swift, thorough, and transparent manner.

This heightened sense of awareness has not only changed how schools approach current cases of sexual misconduct, but has also prompted many schools to proactively investigate allegations of abuse stretching decades into the past. Indeed, dozens of institutions have initiated investigations into such issues in recent years, prompted, in part, by investigative reports by The Boston Globe’s Spotlight Team and other media sources.

Handling And Disclosing Employee Misconduct

This recent focus has brought to light an alarming number of instances in which school employees have engaged in sexual misconduct with students, moved on to other schools, and later committed similar acts.

As these reports underscore, it is critical that a school act quickly and appropriately upon learning of alleged sexual misconduct by an employee. In particular, the school must determine whether the allegations must be reported to government agencies; how the allegations should be investigated; what should be done with the alleged perpetrator while an investigation is ongoing; and how best to care for the affected student or students.

Government Agencies.

While state laws on this subject vary, schools are often required, in their roles as caretakers, to immediately report any instances of alleged child abuse or neglect – including sexual abuse – to state law enforcement and/or licensing agencies. For instance, in Massachusetts, school employees who learn of possible abuse or neglect must immediately call the Massachusetts Department of Children & Families and then submit a standard, written report within 48 hours of the oral report.

Further, even if it is not legally obligated to do so, a school nonetheless may want to promptly report such alleged misconduct to appropriate government agencies. Doing so may help to emphasize to students, families, and the overall school community how seriously the school takes the matter. Schools should seek legal counsel as soon as possible upon learning of allegations of sexual misconduct, in order to determine how best to navigate their mandated reporting obligations.

Potential Employers.

Schools also must determine whether and how they will disclose an incident of sexual misconduct to current or future employers of an offender.
Certain states, including Pennsylvania and Oregon, have enacted “pass the trash” legislation. In other states (such as Massachusetts), similar legislation has been proposed. These laws impose affirmative duties on schools to disclose instances of sexual misconduct to prospective employers. (In certain states, only public schools are subject to such obligations.)

Currently, in most states, schools are not legally required to report sexual misconduct by employees to future employers. Instead, schools must decide, as a matter of policy, whether to do so. Many schools (and other employers) have policies under which they provide only neutral references (name, dates of employment, and position(s) held) to prospective employers, as a means of limiting potential liability.

However, in the case of a former employee with a history of sexual abuse or similar boundary crossing with students, a school might consider whether to make an exception to a neutral reference policy and disclose information relating to the incident to prospective employers. Given the recent spotlight on sexual abuse of students, a school’s withholding such information could create a backlash of negative publicity if a former employee were to reoffend after going to work for a new school.

In addition, some states have reference immunity laws that may protect schools against liability arising from the disclosure of such information. Still, there is always the possibility that a school could face tort claims by a former employee as a consequence of disclosing negative information about the individual.
Legal counsel can assist schools in balancing these considerations and deciding whether to notify prospective employers about a former employee’s sexual misconduct.

Handling And Disclosing Student Misconduct

Schools face similar challenges in determining whether to report student discipline for sexual misconduct to next schools or colleges. While reporting such discipline may impact students’ ability to be successful at their next institutions, schools can open themselves up to potential legal exposure and reputational harm if they fail to do so.

Notably, several standardized applications, such as the Common App (for college applications) and the SSAT App (for secondary school applications), require that both applicants and schools disclose disciplinary violations, including probations, suspensions, and expulsions. The National Association for College Admission Counseling’s (“NACAC”) “Statement of Principles of Good Practice” (“Statement”) also focuses on this issue. The NACAC’s Statement mandates that member schools “provide, as permissible by law, accurate descriptions of the candidates’ personal qualities relevant to the admission process,” and states that member schools should, as a best practice, “establish a written policy on disclosure of disciplinary infractions in their communications to colleges,” and “report any significant change in a candidate’s academic status or qualifications, including personal school conduct record between the time of recommendation and graduation, where permitted by applicable law.”

Further, in June, the American Association of Collegiate Registrars and Admissions Officers (“AACRAO”) released guidance on disciplinary transcript notations. The purpose of the guidance is to “enhance transparency and standardize practices” in order to “promote consistency and fairness to all students involved in internal disciplinary procedures.” AACRAO specifically advised its more than 2,500 public and private higher education member schools to notify receiving institutions of serious misconduct, including a resulting suspension or expulsion, through an academic transcript, student conduct transcript, dean’s certification letter, or transcript insert.

Though the AACRAO’s guidance applies specifically to higher education institutions, it highlights the growing trend of transparency and disclosure as a means of protecting school communities from recidive student conduct.

Recommendations For Schools

Every independent school – whether or not it has dealt with instances of sexual misconduct by employees or students -- should give thoughtful consideration to how best to handle such occurrences. We suggest that schools take the following steps, with the guidance of counsel:
 

• Educate themselves as to their legal obligations to report or disclose sexual misconduct, including to state agencies, potential employers, and next schools or colleges.
• Provide comprehensive training for all faculty and other employees on recognizing and responding appropriately to potential instances of sexual misconduct or other boundary crossing.
• Carefully review and update relevant policies in student and employee handbooks, including those relating to interpersonal misconduct, discipline, employment references, and disclosure to next schools and colleges.
• Ensure that all employment forms and authorizations, such as employment application certifications, separation agreements, and reference releases, provide the school with appropriate discretion in determining whether to report or disclose such information.

Schwartz Hannum’s team of education lawyers has a wealth of experience advising independent schools in issues relating to sexual misconduct and other boundary crossing. If you have any questions about these issues or need assistance with any other school safety-related matters, please feel free to contact us.