Common Loopholes

The laws governing school-perpetrated abuse span both criminal and administrative policies, and they vary greatly from state to state. Among this patchwork of policies, loopholes can make it difficult to maintain safe school environments. The following list is not exhaustive but includes some potential loopholes that need to be addressed.

Age of student and criminal laws: Students enter high school as minors, but they often graduate after turning 18. This creates a loophole in many states because students have reached the legal age of consent, but they are still under the power and authority of their teachers (and other school employees). Criminal laws addressing sexual abuse and assault may have an age cap, meaning that beyond that age, students are unprotected. Older students receiving special education and related services may stay in school even later, and they are also unprotected. The power dynamic of educators over students does not change when a student has a birthday. Until they receive a diploma, their future hangs in the balance, which is why any sexual contact by K-12 school employees to students needs to be criminally prohibited. When such behavior is only addressed in administrative policy, police cannot investigate, and there is less protection against re-offenses.

Limitations of criminal background checks: While criminal background checks are necessary, they are not sufficient. The standard of ethical behavior for K-12 school authority figures is not whether or not they are a convicted sex offender, but if they can be trusted with unsupervised access to children. Even if sexual contact from educator to student is categorically criminalized—as it should be—the background check will only capture those who have been convicted. That means if a victim has not come forward, or if their statute of limitations has expired, or if there is not enough evidence to prove it beyond a reasonable doubt, there is no conviction, even if criminal behavior occurred. Furthermore, there are many other unacceptable behaviors; for example, sexual comments toward students are harmful but not criminal. One way to fill the gap of what is not caught in a criminal background check is to administratively define and prohibit sexual misconduct and to further define professional boundaries. In the age of social media, what is the school’s policy on teacher interactions with students? If there is no policy, how can a breach of professional boundaries be documented or disciplined? Professional boundaries need to be defined and upheld so that school communities can support healthy interactions among staff and students.

Licensure action time delays: States have various laws about when and how a local school or district must report to the state education agency or licensure board. While it is imperative that sexual misconduct be reported to the state level, there is still the possibility that after such a report is made, another school could hire the person who committed the misconduct. Not all employees are licensed, and the license sanction process takes time. Even in a best-case scenario, if all employees who were reported for sexual misconduct were investigated at the state level, what happens if one of those employees applies for a new job before the state takes action? What happens if some reports never get investigated? Local school administrators may be following the law for when and how to report, but the person who committed misconduct could still be hired without the new district knowing about that report. This loophole can be addressed with screening legislation, which has passed in several states. Essentially, it mimics a criminal background check and is a kind of specified reference check in which hiring districts screen the employment history for any record of sexual misconduct. More information about this particular type of policy can be found on the S.E.S.A.M.E. legislation webpage.

If you find a loophole in your state, you can look to see if another state has already addressed that same gap. The language from one state can be copied and altered as necessary so that you are not reinventing the wheel. For example, a large portion of Faith’s Law was borrowed from Pennsylvania, but it had to be altered in some places because of ways it would have conflicted or duplicated existing requirements in Illinois. We also took some language from a similar Nevada statute to further tailor the draft and address concerns that arose.

Knowing the patchwork of laws in your state allows you to see the specific loopholes you need to close, and knowing the laws in other states can help you find patches that will close them. See the Resources page for more information.