Toomey, Manchin Call on Department of Education to Enforce Laws to Protect Students from Sexual Misconduct

Washington, D.C. – U.S.
Senators Pat Toomey (R-Pa.) and Joe Manchin (D-W. Va.) today wrote Secretary of
Education Miguel Cardona questioning the Department of Education’s actions
regarding states’ failure to institute policies that protect students from
educators who engage in sexual misconduct.

For years, K-12 schools across the country have failed
to stop the horrific practice of “passing the trash,” under which schools allow
educators to quietly resign—including, at times, with positive recommendation
letters—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.

“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 Senators. 

Under Section 8546 of the Elementary and Secondary
Education Act (ESEA)—which Senators Toomey and Manchin originally
introduced—the Department of Education must require all states receiving
federal education funding to enact policies, laws, or regulations to stop the
practice of “passing the trash.”

“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

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
  • 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.   

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

 The full letter is available HERE.

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