POLICIES AND PROCEDURES FOR HIRING PRACTICES

The first line of defense in preventing adult sexual misconduct (ASM) is in the screening and hiring of staff members. While school districts share some common elements, specific approaches to hiring practices vary locally, as well as by state. Some of these variations are due to location (e.g., urban, rural, suburban, or frontier); some are due to budgetary limitations; and many variations result from the differing state laws that govern employees with unsupervised access to children.

Therefore, the action steps presented in this section may not apply in all states and school districts. The overarching goal for schools, however, should be the adoption of hiring practices that effectively screen for applicants at risk of posing harm to children.

The U.S. Centers for Disease Control and Prevention (CDC) makes available a practical ASM prevention guide school districts can use to ensure hiring practices adequately address ASM (Saul and Audage, 2007). While this excellent resource was specifically developed for youth-serving organizations, much of the material is applicable to schools (U.S. Government Accountability Office [GAO], 2014). The guide includes valuable advice for the screening of staff and volunteers (Saul and Audage, 2007). Included are the following recommendations:

• Develop criteria that define how screening information will be used to determine an applicant’s suitability.
• Define areas of concern related to ASM, such as an applicant’s fixation on a particular age or gender, or a history of crimes related to sex or violence.
• Develop consistent and systematic policies and processes for screening and selection, including a sequence and timeline.
• Consult with the state district attorney to ensure that screening and selection policies do not violate Title VII of the Civil Rights Act or other Federal or state laws prohibiting discrimination in the workplace.

Background Checks and Fingerprinting

Every state in the nation has enacted laws requiring K–12 educators to have criminal background checks (Barstow, Terrazas, and Todd 2012; “Criminal Records,” 2014; Vaznis, 2014). In all but 12 states, background checks are also required for other employees (e.g., coaches, classroom aides, and bus drivers) who have unsupervised access to children (Tawa, 2015). This measure helps prevent convicted felons from falsifying their identities to avoid detection. Another group of adults to consider are volunteers.

Background checks should not be a district’s only ASM prevention measure. Relying on background checks alone could lead schools to develop a false sense of security about ASM prevention.

Schools depend on both state and Federal sources of criminal data — such as state law enforcement databases, and the Interstate Identification Index of the Federal Bureau of Investigation (FBI) — to gather applicant information. In some cases, state legislation defines the particular database(s) that should form part of background check searches (“Criminal Records,” 2014).

The FBI’s Interstate Identification Index is an automated system used to exchange arrest and conviction information that is voluntarily reported by agencies at the Federal, state, and municipal levels. An additional source of Federal information is the U.S. Department of Justice’s National Sex Offender Public Registry, an online tool that also can be used by the general public to search for sex offenders by name and/or location (see https://www.nsopw.gov/). In addition, all background checks must comprise a search of state sexual offender database(s) (“Criminal Records,” 2014). In some cases, a search of national sex offender registries is required by state law.

Beyond these searches, 25 states recently reported consulting the National Association of State Directors of Teacher Education and Certification (NASDTEC) clearinghouse (GAO, 2014). This database maintains information, voluntarily reported by states, on teachers who have lost their teaching credentials as a result of abuse-related or ASM offenses.

Some states call for background checks to be repeated at specific points (e.g., when re-certification is required), while other states rely on notification systems to learn about subsequent convictions or arrests (“Criminal Records,” 2014). Unfortunately, these systems often flag only subsequent convictions or arrests in the same state. Schools can therefore miss offenses occurring in states outside their initial search (GAO, 2014). The CDC concurs that records about arrests are not always linked or comprehensive. Thus, methods other than database searches might be needed to effectively screen applicants (Saul and Audage, 2007).

If information gathered during the application process reveals that an applicant has moved frequently, searches across the databases of multiple states are recommended. Case in point: A Pennsylvania legislator spoke recently about loopholes that allow sexual offenders to gain employment outside the state where they committed an offense. This practice, which takes place with the knowledge of some school officials, occurs frequently enough to have been dubbed “Passing the Trash” (Tawa, 2015).

The GAO (2014) and the CDC (Saul and Audage, 2007) recommended the following steps (included here with modifications to reflect the need to consult state laws) to those working with youths:

Recommended Background Check Measures
Plan ahead for the time and financial resources needed to conduct background checks.
Use background checks only as one part of the prevention efforts.
Delay criminal background checks until the end of the initial screening and selection process. This way, time and resources are expended only on applicants that make it through the prescreening process successfully. (Note here that screening timelines are sometimes mandated by law.)
Secure a signed consent form from applicants before beginning the background check. Include in this consent an indemnification clause developed by an attorney.
Decide which offenses will deem a close examination and which will disqualify applicants. (Consult state laws here, as they sometimes include specific disqualifying offenses.) Among absolute disqualifications are violent behavior and a history of child sexual abuse perpetration. Depending on the position the applicant is seeking and the risk this position presents to children, as well as state law, drug and driving offenses also may be disqualifiers.
Arrest data cannot be used as grounds for disqualification; only offenses resulting in convictions can be used.
Develop procedures to keep the information resulting from criminal background checks confidential. Select a storage location for the files and limit the access. (Consult state law, as it may require specific confidentiality procedures.)
Ensure that your school district’s process for conducting criminal background checks is legally sound. Consult municipal, state, and national laws and regulations, as well as the district attorney and insurance company, as needed.

How Fingerprints Are Processed and Stored

Methods for collecting fingerprints are determined by state laws and therefore vary ("Criminal Records,” 2014). Many states require fingerprints to be collected at state police or other law enforcement offices, with the process witnessed by a law enforcement official. Some school districts delegate background checks and the associated fingerprinting responsibility to state agencies, such as the Arizona Department of Public Safety (as is the case in Arizona [“Fingerprint Clearance,” n.d.]) or to an office within the state department of education, such as the Office of School Personnel Review and Accountability in New York State (“Fingerprint FAQs,” 2015).

Some states are allowed by law to use vendors trained in fingerprinting techniques; one vendor handles the process for nine states using scanners. These are situated throughout those states and have electronic submission capabilities ("Applicant Fingerprint,” n.d.).

In all cases, fingerprints are secured and transferred from the point of collection to the FBI database and to all other state and sex offender databases used for the background check. Once the FBI database is checked, the fingerprints are returned to the designated state official, usually within the state education agency (SEA), but sometimes to a law enforcement office or other designated authority (“Criminal Records,” 2014).

Methods that maximize confidentiality are used for the transfer and maintenance of fingerprints and vary by state law. In some cases, the packages used for transport are nontransparent, sealed, conspicuously marked as confidential, and are not to be opened by anyone other than the intended recipient. It is a misdemeanor in some states to tamper with the packaging or otherwise violate confidentiality, and in all cases, when in storage, fingerprints are not made available for public inspection (“Criminal Records,” 2014). The length of time they are maintained varies by state, as are the circumstances under which they are updated (usually at the time of educator re-certification as part of the background check process).

Background Checks Caveats

It is important to note that background checks will not identify most sexual offenders, since most may have not yet been caught (Saul and Audage, 2007). The background check is but one aspect of the hiring process, which also should include an initial face-to-face interview, follow-up interviews, reference checks, a public search of the applicant online, and any additional hiring procedures determined by the state or school district.

In 2014, the GAO reported that education and criminal justice officials, among others, have raised concerns about the reliability of data made available through background checks. These concerns include the following:

• Education officials in one state reported that whether a sex offender is included in the state’s public sex offender registry depends on the local court system. Therefore, not all offenders will be identified.
• States do not uniformly report information on educators that have been disciplined to the NASDTEC clearinghouse. SEA officials in each of the states visited by GAO when developing the report said they have seen evidence of incomplete and incorrect data in the database.
• Representatives from a risk management company told GAO that few perpetrators are caught the first time they commit an offense; sex offenders often have several victims before they are caught.
• Officials from one SEA reported being confused when conducting searches for common names, since their state’s public sex offender registry is searchable by name, but not by social security number.

The Employment Application

Employment applications can be shaped to provide insight about professional boundaries and help determine whether an applicant can consistently demonstrate ethical standards of conduct with students. Open-ended questions, for example, encourage broad responses that can shed unexpected light on potential issues. These responses can also serve to flag items for follow-up questions to be addressed during an interview, as well as throughout the screening and selection process (Saul and Audage, 2007).

Further, disclosure statements serve as an opportunity to question applicants about their criminal histories. While perpetrators may not disclose past offenses, the inquiry itself will serve to demonstrate the school’s seriousness about safeguarding its students (Saul and Audage, 2007). Disclosure statements also may serve to discourage ASM perpetrators from applying altogether.

Employment applications with evidence of the following should be red-flagged:

• A break in the licensure record
• Mid-year or early departure from a school post(s)
• Frequent changes in jobs/positions
• Name change(s)
• Frequent relocations

Face-to-Face Interviews

To further determine a candidate’s suitability, interviews can be led by a district administrator, principal, assistant principal, team lead, and/or teacher working in a similar position; who leads the interview depends on the nature of the job opening. When feasible, it is best to involve both administrators and educators in the process.

To help screen for potential ASM risk factors, scenarios can be prepared and incorporated into the interview process. These scenarios can require applicants to problem-solve potential issues at the school, and can help

• unveil boundary issues;
• indicate whether an applicant’s level of insight and decision-making is in line with the district’s and/or school’s code of conduct;
• bring to light knowledge about the district’s child protection policies; and
• demonstrate an applicant’s ability to respond appropriately to any number of issues or situations.

Furthermore, responses can help the interviewer(s) determine whether an applicant has the capacity for mature adult relationships, not just relationships with children or youths (Saul and Audage, 2007), and note any evidence of a potential fixation on age or gender. The latter can be flagged to help establish whether special expertise for working with certain groups may account for this interest, or whether a fixation may be evident.

The recommendations that follow (Saul and Audage, 2007) should be considered during the interview process.

During the Interview Process
Let applicants know that your school is serious about safeguarding youths.
Clarify applicants’ responses to employment application questions.
Inform applicants about the district’s and/or school’s code of conduct and policies procedures preventing ASM.
Ask applicants if they have a problem with any of these policies and procedures and have them sign a statement to this effect.
Ask open-ended questions that encourage discussion.
Sample Screening Questions
What makes you a good candidate for working with children and youths?
What would your friends or colleagues say about how you interact with children and youths?
Describe a situation in your previous job where you experienced a challenge in working with a student, and explain how you resolved the situation.
Describe a situation in your previous job where you experienced a challenge in working with a supervisor and/or colleague, and explain how you resolved it.
Have you used social media to communicate with children and youths in previous jobs? If so, how did you use Facebook, Instagram, Twitter, texting, or other forms of electronic communication?
Why do you want this position?
What other hobbies or activities do you enjoy?

Reference Checks

Reference checks provide additional information about applicants and help verify previous work and volunteer history. The CDC (Saul and Audage, 2007) makes the following suggestions for conducting reference checks:

• Obtain verbal references to supplement those provided in writing. Conversations can elicit much more information. Listen attentively since individuals may speak “in code” to signal a problem. Ask whether statements should be considered confidential.
• Match references with employment and volunteer history. Is anyone important missing from the references, such as a supervisor from an applicant’s most recent job? To provide a complete picture of the applicant, references should come from a variety of sources.
• Be aware that many previous and/or current employers of applicants will only provide basic information, such as dates of employment or rehiring eligibility. If a former employer provides limited information, ask if this is the result of a school, district, or institutional policy.

The following questions can help elicit useful information from former employers (Saul and Audage, 2007):

• How would you describe the personal characteristics of the applicant?
• How does the applicant interact with students?
• Why would this person be a good candidate for working with students? Is there any reason this person should not work with students?
• Have you seen the applicant discipline students?
• Would you hire this person again? Would you want the applicant to return to your organization in the future? If not, why?

Online Public Searches

Some schools may choose to conduct an online search for additional relevant information on an applicant. (Note that applicants should be informed of these searches.) Some schools have secured permission to view an applicant’s Facebook page or LinkedIn, Twitter, and Instagram accounts. When conducting online public searches, keep in mind that more than one person can share the same name and that it can be difficult to verify the accuracy of online information.

The District and School Emergency Operations Plans

Schools and school districts are entrusted to have policies, plans, and procedures for keeping children safe from all hazards, threats, and emergencies, ASM included. Providing for ASM in the school emergency operations plan (EOP) via one or more threat- and hazard-specific annexes ensures an effective, coordinated response to ASM incidence. These annexes can delineate the policies, procedures, and courses of action a school will follow to prevent ASM and protect children. They can also help children and schools respond to and recover from an incident, should ASM occur. To learn more about the development of high-quality school EOPs, and threat- and hazard-specific annexes, view the REMS TA Center at http://rems.ed.gov.

The following considerations can help inform the development of policies, procedures, goals, objectives, and courses of action a school and district may take in response to an ASM incidence.

School Board/District Considerations

1. Designate a single spokesperson for communicating with the media and the general public.
2. Consider providing training or retraining for all district employees (Saul and Audage, 2007).
3. Ensure that guidance for Title IX investigations (Office for Civil Rights, 2014) is followed closely. This includes the following:
   • Having designated and reasonable timeframes for the major stages of the investigation.
   • Ensuring that school personnel take steps to end the alleged perpetration. For example, if a teacher is alleged to be the perpetrator, it may be appropriate for the student to transfer to another class.
   • Preventing disclosure of the names of the parties involved.
   • Providing written notice to the complainant and alleged perpetrator on the outcome of the investigation.
   • Ensuring steps for ASM prevention are taken.
   • Ensuring the complainant is not retaliated against (something Title IX regulations specifically prohibit).

School Considerations

1. Organize an emergency response team who can provide support to students, school personnel, and parents, if needed.
2. Implement protocols to coordinate the school’s response with local law enforcement to ensure no one intervenes with a criminal investigation.
3. Train parents and teachers to implement psychological first aid, as appropriate.
4. Implement recovery measures for the student, the reporter, and the school community based on their specific needs.

Other measures may be required of the school and the district, depending on the nature of the ASM and its impact on the student and the school community