Passing the Trash: Senators Question Education Department on Sexual Misconduct Policy

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In a letter to Secretary of Education Miguel Cardona on Thursday, Senators Pat Toomey (R-Pa.) and Joe Manchin (D-W. Va.) questioned the Department of Education’s actions regarding states’ failure to institute policies that protect students from educators who engage in sexual misconduct.

The Senators wrote, “Our legislation (Section 8546 of the Elementary and Secondary Education Act (ESEA)) sought to end the horrific practice, known as ‘passing the trash’ or ‘aiding and abetting sexual abuse.’ Yet, seven years after its enactment, the patchwork of state laws identified in the Report show that many states have failed to sufficiently prohibit the practices that contributed to a student’s death, such as the false letters of recommendation that allowed a school employee to transfer schools with a ‘clean’ record. The findings in the Report underscore the need for stronger enforcement to ensure that states comply with this important provision of law. Further, we are concerned that the Department has yet to put into place a concrete timeline by which states must come into compliance”

The “passing the trash” phenomenon has been in the news a lot lately, and for good reason. This is a horrific practice that has been going on for years, in which schools allow educators to quietly resign rather than face disciplinary action for committing a sexual crime against a student. This enables sexual predators to seek other educational jobs and continue assaulting students. Senator Toomey is leading the charge to put an end to this practice, by requiring all states receiving federal education funding to enact policies, laws, or regulations to stop the practice of “passing the trash.”

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“We urge the Department to immediately put the recommendations from this Report into practice to ensure that all policies in place to protect children are enforced, especially the ESEA’s prohibition on aiding and abetting sexual abuse. Specifically, we urge the Department to issue formal guidance to states to ensure states are fully aware of how they can comply with their obligations under the law,” the Senators continued.

The Senators flagged several alarming pieces of the Department of Education’s Report, including:

  • At minimum, 32 states do not have policies in place to meet the baseline requirements of Section 8546.
  • Background check laws in existence have limitations including that “applicants with a record of sexual misconduct in other states might omit or falsify their prior employment history on a job application” without facing legal ramifications.
  • Only 19 State Educational Agencies (SEAs) believed that existing state laws and policies in their respective states were sufficient to meet the requirements of Section 8546.
  • Only 18 SEAs “monitor district compliance with state laws or policies” to prohibit the practice of aiding and abetting sexual misconduct.
  • Eight SEAs reported that they do not document district complaints and/or incidents of sexual misconduct and seven SEAs did not know whether their districts documented complaints and/or incidents of sexual misconduct.
  • Only nine SEAs had laws that address all four of the significant factors identified by the Report as prohibiting the aiding and abetting of sexual assault.
  • Only 20 SEAs have laws prohibiting information suppression, including prohibiting termination agreements or misleading letters of recommendation.
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In February, the Senators wrote Secretary Cardona requesting an update regarding state compliance. In early June, the Department, after several delays, released a report on the matter. Senator Toomey’s statement on the initial report is available here.

The full letter is available here.

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