Understanding the “Pass the Trash” Law: Safeguarding Our Schools

What is the “Pass the Trash” Law?

19th-century author Anthony Hope wrote the popular novel "The Prisoner of Zenda" in which well meaning nobles attempted to pass off a less-than-sterling impersonator of the rightful king as the real deal, to avoid an international incident. Although well meaning, the plan displayed a complete disregard for any effects the impostor might have on the kingdom.
Alas, that impulse to cast a silly plan over the heads of innocent people has persisted through the years. In modern society it’s commonly referred to as ‘the Pass the Trash law’ and it’s making schools its regional playground. But what exactly is it and why does it matter?
In 2013, 18 states adopted "pass the trash" laws, designed to ensure that teachers, principals, superintendents and other school employees who commit sex crimes don’t go on to work in other schools. The law encourages school officials to thoroughly check the backgrounds of teachers and staff members under their employ before those teachers leave their employ.
The purpose of the "pass the trash" law is to protect students by making sure teachers who commit sex crimes are blacklisted and most importantly, don’t face the possibility of returning to work with children.
Kansas passed its version of the "pass the trash" law in 2013. It requires schools to warn prospective employers if the current employer has terminated the contract of a teacher or other employee after allegations of sexual misconduct. And of course, the offending teacher can be reported to the Kansas Commission of Education.
You’d think this would be a no-brainer, given the risk of having a sex offender working with children. But, in the past, some school boards would notify the parent organization, which would often just transfer the employee to a different school . From there, it was common practice for the employee to "turn over a new leaf," and find a new career unrelated to children, usually in the private sector where it was safer.
But now, the "pass the trash" law keeps many sex offenders in the schools and out of the classroom. If an employee is transferred, the new employer is warned about the accusation. So say goodbye to the cushy private sector, because serial offenders will have to find work in the public schools, where it’s tougher to accumulate a number of victims, since they’re constantly moving from school to school. They’ll still be given second, third and fourth chances to become more ingrained into their communities.
In the past, administrators from one district would simply transfer an employee to another district where the administrator didn’t have oversight, and wouldn’t know about their reputation. Many officials do this because they want to avoid stigma and liability, but the "pass the trash" law changes that.
In 2005, the U.S. Department of Education tried to identify the issue with its report "A Study of State Laws on Reporting and Responding to the Sexual Abuse of Children." In it, the Education Department found that at least 10 percent of all public school teachers working in elementary and secondary schools have been accused of sexual misconduct with students. The report also estimated that each year about 4 percent of the nation’s teachers, a large majority of whom are male, face allegations of inappropriate behavior.
Do we really want to put our kids in that environment? Or do we want to put the safety of our children first by ensuring the "pass the trash" laws are upheld?

Main Features of the Law

"The Pass the Trash" law made several changes to how an employee’s criminal background is reviewed prior to being hired in a school or childcare setting. The law is divided into six sections and is commonly referred to as "the Evolving Statute."
To be as thorough as possible, I will review each provision of the law.

1. Convictions

Prohibition of Hiring a Potential Employee with Certain Convictions
An employer may not knowingly employ, hire or retain a person who has been convicted of:
C
A conviction under section 39-8101 Idaho Code;
A conviction outside of Idaho of an offense that would constitute a felony if committed in Idaho;
Being on Idaho’s violent sexual offender registry;
Being on the National Sex Offender Registry; and
A conviction in another state for an equivalent offense to an offense that otherwise would be included in the above listed convictions (known as an "out-of-state equivalent") when the out of state equivalent offense is a misdemeanor or an element of the out-of-state felony is false identification.
Be aware that none of these specific criminal convictions can be mitigated by a later pardon. You can’t reverse it.

2. Criminal History Background Check Records

Disclosure Requirements
The law requires an employer of a person who is currently employed in a school or an employee of or volunteer in a private school to disclose to a prospective employer any instances in which the current employer or private school had knowledge that the individual was convicted thereof after becoming privy to the fact of the conviction. The disclosure must be made within five days of the employer or private school becoming privy to the information. Be aware that there is an exception to this requirement for employers with less than five employees.

3. Inquire of Candidate?

Do Employers Have to Run a Criminal History Background Check?
Not yet. The law does not, however, prohibit an employer from making an oral or written inquiry whether an applicant has ever been convicted of an offense listed in Section 39-1106(1)(a) Idaho Code, nor does it prohibit an employer from requiring the applicant to answer a question regarding that conviction.
"Employers should be aware, however, that there’s a bill pending that would require Idaho employers to disclose to the applicant so that the applicant can make an affirmative answer to whether the applicant had been convicted of one of the crimes listed above."

4. Voluntary Disclosure

Voluntary Disclosure
The law permits any former employee, employee or volunteer who has knowledge that a person employed by the employer and who works or will be working at a school has been convicted of one of the offenses listed in Section 39-1106(1)(a) Idaho Code to make a disclosure to the employer. The employer is required to promptly investigate those allegations and advise the person who made the allegations or has knowledge of the criminal conviction of the results of that investigation within a reasonable timeframe.

5. Penalty for Failure to Report Convictions

Penalty
If an employer of a person employed in a school fails to disclose as required, criminal penalty against the employer, and all employers subject to penalties are the persons responsible for the unlawful hiring and willful failure to disclose in violation of section 39-1106(6) Idaho Code, are subject to penalties under section 18-1351, Idaho Code. Conviction for an infraction, the punishment for conviction is a fine not to exceed $1,000.

6. Training

Section Eight
Lastly, the law directs the State Board of Education and each school district to provide instructions or training for school and school district officials concerning an employer’s responsibilities and the process for reporting to the employer of actual or alleged convictions of an employee who is subject to disclosure pursuant to section 39-1106(6) Idaho Code.

The Law’s Effects on Educational Institutions

For schools and educational institutions, the most important impact of the "pass the trash" law is most clearly the new hiring protocols. These protocols may include any number of procedures – from the most basic steps (like requiring a hand-scribbled "S.C." with no further information) to the most onerous (such as demanding disclosure by the potential hire of colleagues’ thoughts in employment apps or insisting on prior interviews with past students as the first step in evaluating a possible employer). As a net result, it is much more likely that younger teachers will become ensnared in the network of other predators before they can distance themselves from their last job. The law is also designed to protect students from the predators possibly in residence at their most recent school.
The practical effect of the elimination of the ability of the departing teacher to conceal prior actions at a former school is that many of these offenders will test new environments and wind up in the one that is less stringent or more naïve. As you can imagine, such offenders are going to be looking for the least thorough interview practice.
As another result, the end-user periods of time for the recruitment process have been extended. While that may be necessary to properly vet applications, in many cases the delayed start date delays the start of classes. While new employees are being molded into paragons of safety for students, the process continues for those who would harm them.
Changes in personnel practices and the vast array of safety measures that will now be required of educational institutions will mean that in addition to being the most expensive to operate due to their cadastral burdens, schools will be the most difficult to recruit for and to retain.

Concerns and Criticisms

While the "Pass the Trash" law has been criticized for not going far enough, there are other flaws to the law as well. These include the exemption of administrators from the reporting obligations, the definition of sexual misconduct, and the burden of proof.
Timing of allegations: In California, the statute of limitations is 2 years from the date of the alleged misconduct. Accordingly, any alleged misconduct – including but not limited to child molestation – that does not occur before the time the law went into effect will not have to be reported by former employers.
Exemption for administrators: While the "Pass the Trash" law places heightened burdens on the principals and superintendents , the law does not require school district employees other than the superintendent to report allegations of misconduct.
Definition of misconduct: The "Pass the Trash" law requires reporting of sexual misconduct only. Associations representing the supervisors of California K-12 schools argue the law should include any misconduct, not only sexual misconduct.
Burden of proof: Opponents of the law argue the requirement to report misconduct creates a burden of proof on the employer that would normally not exist in California employment law, and places too much power in the hands of the employee.

Real-World Cases and Instances

There have been several high-profile cases over the years of teachers and administrators who, rather than pursue punishment and/or termination of an offending teacher, would allow a teacher to resign "in good standing" to "terminate his employment for reasons not related to misconduct which affected the good order, efficiency or discipline of the schools." For example: A former band teacher at Texas City Independent School District ("DISD") had been accused of making unwanted sexual advances toward a student at the junior high school. As a result, the teacher was reported to the State Board of Educator Certification ("SBEC"). The band teacher resigned, tendering his letter of resignation after several allegations of misconduct were made by numerous parents regarding his sexual relationship with several students. Upon leaving the DISD, the SBEC took no further action; however, subsequent to his departure from the DISD in 2008, the former band teacher was hired as a music teacher at mediation for 11 years. He was terminated from his position when allegations of sexual assault were made against him. The former head football coach at Cypress Fairbanks Independent School District ("CFISD") was allowed to resign in 2005. The head coach had accepted a position at another school district after he had allegedly sexually assaulted several female students, a graduate and a current student. After a criminal investigation, the head coach fled and is now a fugitive. It is especially disconcerting when the "pass the trash" practice occurs in a small, rural school district. In 2005, a teacher and assistant principal were allowed to resign in good standing from an Ohio school district after charges surfaced of sexually abusing multiple young girls. The former teachers then "moved almost immediately to another small, rural district thirty miles west." Because the former teachers were no longer employees at the Ohio school district, the SBEC virtually handcuffed the SBEC and the Texas school district Employer’s ability to initiate any form of action, including to notify the Texas school district of the misconduct and abuser’s license status. Eugene McCarthy, the attorney for the victimized children filed a petition on behalf of the victims and their parents against the State of Ohio and the state Board of Education on August 24, claiming that officials failed to warn the public, as required by law.

Potential Changes and Future Amendments

Past and recent amendments to the "Pass the Trash" law have primarily been used to expand the scope of the law, imposing more requirements on educational institutions. For example, in 2009, the state legislature added a provision that required schools to contact law enforcement if the accused did not have a criminal record, and in 2011, the legislature amended the law to require schools both to notify law enforcement and contact the state Department of Public Safety.
In June 2015, the law received another update when Governor McCrory signed Bill 141 into law, expanding the definition of "school personnel" under the act to include all school volunteers whose position requires them or allows them, under the direction of a current employee, to have routine contact with students. "Routine contact" was also defined to include activities such as chaperoning field trips, assisting the school in athletic or non-athletic extracurricular activity events, accompanying students on school-related activities, and tutoring or coaching students. The bill went into effect October 1 , 2015.
No amendments to the law have been proposed for consideration in the 2016 legislative session, but proposals may come up in the next legislative session. Since the law became effective in 1994, lawmakers in North Carolina have considered numerous proposals that broaden the scope of the law from age of students to position of the accused to the reporting requirements. Reducing the scope of the law is less likely to be considered by the legislature given the heightened concern over student safety in schools, yet possible. An area in which the legislature could reduce restrictions has been with regard to notification of the law. Currently, "no school, school official, or local board shall knowingly or wilfully disclose the information required by G.S. 14-277.7(b) to any person." While the intent of this prohibition is to protect the student, it does not take into account the fact that the public may be further protected if a lesson is learned from a prior sex offender at school who was allowed to commit another sexual offense against a student. A more public disclosure of the lesson is warranted.