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Education Laws and Regulations

Careful Hiring Practices and Reporting Misconduct to DESE — Reminder of State and Federal Requirements

To:Superintendents of Schools, Charter School Leaders, Directors of Approved Day or Residential Schools, Educational Collaboratives, Human Resources Professionals, School Employers, and Other Interested Parties
From:Jeffrey C. Riley, Commissioner of Elementary and Secondary Education
Date:September 14, 2020

Schools are entrusted with the safety and well-being of the students they serve. Exercising due diligence in screening and hiring school personnel is a vital part of fulfilling that responsibility. This advisory highlights important state and federal safety requirements as well as suggestions from the Department of Elementary and Secondary Education (DESE) for meeting these expectations.1

Preparing, hiring, and supporting a diverse workforce of excellent educators is essential to providing every student with access to a safe and supportive school environment that cultivates academic curiosity and confidence. DESE's Office of Educator Effectiveness provides additional information and resources to assist districts and schools in carrying out this vital function. The focus of this advisory is only on state and federal laws that relate to due diligence in the staff hiring process and mitigating risks to students' safety.

We encourage districts and schools to consult with their legal counsel regarding the legal requirements and recommended screening, hiring, and risk management practices for school personnel. This memorandum is not intended to substitute for such consultations and legal advice.

This advisory reaffirms Massachusetts state policy under section 8546 of the Elementary and Secondary Education Act (ESEA), as amended. The federal law requires every state, state educational agency, and local educational agency that receives ESEA funds to have laws, regulations, or policies in place to prohibit the aiding and abetting of sexual abuse of students or minors. DESE and all local education agencies in the Commonwealth have provided an assurance of compliance with all applicable legal requirements, including section 8546.

A. Careful Hiring Practices

Before making an offer of employment for any school employee, including administrators, teachers, temporary substitute teachers, and support personnel, we recommend that at a minimum, each school district, school employer, or educational program complete these steps to explore the candidate's employment history, conduct required criminal background checks, and review the candidate's licensure history.

Employment History

  1. Detailed job application. Require candidates to submit a detailed job application, including a list of all employers past and present, with names and contact information for supervisor(s); employer references from past employment; and volunteer experiences with youth-serving organizations. Consider including in the application a statement that incomplete or false information can result in termination. Consider requiring applicants to sign releases permitting former employers to provide any and all relevant information about the candidate.

  2. Interview applicants. The hiring process focuses on learning about the applicant's qualifications, experience, knowledge, skills, and abilities in relation to the position. During interviews, in addition to performance-based questions asking how an applicant has responded or would respond to a particular situation, ask open-ended questions to expand upon the written application, including questions about any gaps on an applicant's resumé and why the applicant left previous positions. We also recommend that the school or district share its code of conduct and policies on adult-student interactions with the potential employee.

  3. Check references. Conduct thorough reference checks on finalists. Use a checklist and keep documentation of reference calls and all due diligence efforts. Thorough reference checks may go beyond contacting individuals listed by the candidate. We recommend contacting a candidate's former employers and supervisors — particularly the superintendent, principal, human resources director, or a senior level administrator in the school(s) or district(s) where the candidate worked previously — to obtain relevant information, as well as contacting the candidate's current employer after extending a conditional offer.

    A reference call typically focuses on the candidate's demonstrated job performance, which is fundamental. It is advisable also to ask why the candidate left the position and what the reference knows about any gaps in the candidate's work history. Helpful questions to ask are whether the reference would hire this person again and whether the reference has any concerns about this candidate working with students.

Required Background Checks

  1. Conduct required criminal background checks. Conduct both state (CORI) and federal (CHRI) required criminal background checks on current and prospective employees, school transportation providers, and others who may have direct and unmonitored contact with children, as required by G.L. c. 71, § 38R. Also, check the Massachusetts Sex Offender Registry Board website by name before hiring a new employee. DESE will be posting an updated advisory on criminal background checks for schools. Listed below are key elements.

    1. CORI checks: School employers must conduct state Criminal Offender Record Information (CORI) checks on current and prospective employees who may have direct and unmonitored contact with children. The CORI check process supplies information from Massachusetts criminal courts and cases. The CORI requirements that apply to Massachusetts schools are in G.L. c. 71, § 38R and in the regulations of the Department of Criminal Justice Information Services, 803 CMR 2.00 Download PDF Document, as well as DESE's regulations on Criminal History Checks for School Employees, 603 CMR 51.00.

    2. CHRI (fingerprint-based/SAFIS) checks: School employers must conduct federal Criminal History Record Information (CHRI) checks on current and prospective employees who may have direct and unmonitored contact with children. The Statewide Applicant Fingerprint Identification Services (SAFIS) program provides fingerprint-based state and national criminal history record information to school employers for current and prospective employees. In certain specified circumstances, school employers must forward reports from SAFIS checks they receive to DESE's Office of Professional Practices Investigations. The CHRI/SAFIS requirements for schools are in G.L. c. 71, § 38R and DESE's regulations on Criminal History Checks for School Employees, 603 CMR 51.00.

    3. SORI checks: Consult the Sex Offender Registry Board (SORB) website to confirm that applicants are not classified by SORB as Level 3 sex offenders, or as Level 2 sex offenders classified after July 12, 2013.

Licensure History

  1. Review ELAR for all candidates. For candidates applying for a position requiring an educator license, always confirm through DESE's Educator Licensure and Renewal (ELAR) system that the candidate holds an appropriate license. ELAR is the portal for DESE's comprehensive licensure system with access for applicants, license holders, and school leaders and administrators. An educator's ELAR file includes the license status, areas of licensure, and license disciplinary history for each Massachusetts license holder. Because an educator's ELAR file is more complete than the public lookup tool for educator licensure on DESE's website, always check ELAR when making employment decisions. If ELAR shows the candidate has a history of license discipline, you are encouraged to contact DESE's Office of Professional Practices Investigations (OPPI) for public information relating to such discipline by emailing ELARInquiries@mass.gov . If the candidate is from another state, check that state's licensing authority for public information.2

    Even if a candidate is applying for a position that does not require a license (for example, a temporary substitute teacher), that individual may hold an educator license; thus, always check ELAR so you can review any license disciplinary history that appears in the candidate's ELAR account. If ELAR shows the candidate has a history of license discipline, you are encouraged to contact OPPI for public information relating to such discipline.

B. Careful Reference Practices Required by Federal Law

To help protect students from sexual abuse at school, section 8546 of the Elementary and Secondary Education Act (ESEA, 20 U.S.C. §7926), as amended by the Every Student Succeeds Act (ESSA), requires state and local educational agencies (SEAs and LEAs) to have laws, regulations, or policies in place that prohibit the SEA, LEA, or school as well as school employees, contractors and agents from "assisting a school employee, contractor or agent in obtaining a new job . . . if the individual or agency knows, or has probable cause to believe," that the person "engaged in sexual misconduct regarding a minor or student in violation of the law."3 The SEA, LEA, or school is not prohibited from following routine procedures regarding the transmission of administrative and personnel files but would be prohibited from doing more than that to help the employee obtain new employment.

Section 8546 allows for certain exceptions to the prohibition on providing an employment recommendation. In particular, the prohibition does not apply if: (1) the alleged misconduct has been properly reported to law enforcement or other required authorities; or (2) the matter has been officially closed; the individual has been exonerated; or the investigation remains open without charges filed within four years of the report to law enforcement.

Every LEA in Massachusetts that receives ESEA funds must have a policy that conforms to section 8546. Please see section 8546 in its entirety (attached) for more information.

C. Required Reports to DESE

Administrators' Duty to Report and Produce Documents. Under the Educator Licensure regulations, 603 CMR 7.15(8)(g), any administrator who has dismissed, declined to renew, or obtained the resignation of a licensed educator for misconduct, as defined by 603 CMR 7.15 (8)(a), must make a written report to the Commissioner within 30 days. Administrators must also provide requested documents or information to DESE in connection with investigations of educator misconduct allegations. Failure to comply with those obligations may be grounds for license sanctions to the administrator's own license. DESE's Office of Professional Practices Investigations maintains a secure DropBox for electronic communication of confidential documents.

Please note that the regulation does not require reporting of dismissals or non-renewals for reasons of poor job performance or other factors that do not implicate the grounds for license action in 603 CMR 7.15 (8)(a).

If a school employee who does not hold an educator license (for example, a temporary substitute teacher) commits misconduct that would be reported if the employee were licensed, DESE recommends that the school employer report the misconduct to the Office of Professional Practices Investigations.

Licensed Educators' Duty to Report Criminal Convictions and Administrative Sanctions. Under 603 CMR 7.15(8)(h), a licensed educator must send written notice within ten days to the Commissioner if the licensed educator is convicted of a crime, receives a guilty verdict, admits to sufficient facts or pleads guilty or nolo contendere; is the subject of an enforcement action by the Massachusetts State Ethics Commission; or has surrendered or had a sanction imposed on any other license to practice a profession in any jurisdiction.

Additional Reporting and Updating Requirement for License Holders and Applicants. In addition to the license holder's reporting requirement under 603 CMR 7.15(8)(h), to qualify for licensure or renew a license, an educator must attest truthfully to a set of questions on an affidavit included in the licensure application. The affidavit requires the educator to provide certain information from that educator's history. The affidavit also requires educators to notify the Commissioner in writing within ten days if any of their answers change. License holders must also update the contact information in their ELAR file to reflect any changes.

Care in hiring and supervising staff is a key factor in protecting students and continuing to improve our schools. For further guidance, we recommend that you and your human resources staff consult with your legal counsel as needed. Thank you for your attention to these important matters.

Attachment:

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Section 8546 of the Elementary and Secondary Education Act

1 This advisory updates and replaces DESE's August 2010 advisory entitled Hiring Licensed Educational Personnel: Legal Requirements and Careful Hiring Practices and DESE's April 2009 advisory about requirements to report misconduct. It does not address the reporting requirements of G.L. c. 119, §51A, the statute that mandates reporting of suspected child abuse or neglect. For information about the responsibilities of school personnel under the child abuse reporting law, please see Child Abuse and Neglect Reporting: A Guide for Mandated Reporters Download PDF Document. The Massachusetts Children's Trust has additional resources available at Preventing Child Sexual Abuse.

2 If the school employer subscribes to the Clearinghouse of the National Association of State Directors of Teacher Education and Certification (NASDTEC), which collects information about licensure history in other states, the employer may check the candidate through the Clearinghouse.

3 As of August 14, 2020, the U.S. Department of Education has promulgated new regulations under Title IX of the Education Amendments of 1972 that specify how recipients of federal funds must respond to allegations of sexual harassment. Title IX Regulations Addressing Sexual Harassment (Unofficial Copy) (PDF) Download PDF Document

 
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