ERIC Identifier: ED324767
Publication Date: 1990-00-00
Author: Baas, Alan
Source: ERIC Clearinghouse on Educational Management Eugene
Background Checks on School Personnel. ERIC Digest
Series EA 55.
It's relatively simple to check on the basic professional competency
of someone applying to work at your school. Applicants typically come with
a trail of credentials, licenses, and employer references. But how do you
make sure that your professionally competent teacher or bus driver is also
morally competent? School districts differ greatly in how thorough they
are in responding to this question (Richard Titus and Carol DeFrances 1989).
WHAT ARE THE ISSUES?
Of more than 230,000 cases of child abuse in 1984, just a little more
than 200 involved school employees (Sally Banks Zakariya 1988). Given that
kind of record, many lawmakers and educators emphasize applicant privacy
rights in the investigation of potential employees. The National Education
Association, for instance, has a policy asserting "the right to be free
from fingerprinting as a condition of employment." Also of high concern
is the worry that a person "not be punished twice for the same crime."
Others point to the potential for harmful behaviors in addition to child
abuse--for instance, those that might derive from a pattern of drug abuse
or inappropriate fiscal management--and argue that no effort can be considered
too much when the well-being of children is involved. However individuals
stand on this issue, district size appears to be a major determinant of
how carefully schools screen employees (Titus and DeFrances). Smaller districts
rely more on references and informal sources. Larger systems tend to use
bureaucratized procedures, including criminal record checks. These districts
are more apt to allow employees to start working before all the checking
is concluded and may have more difficulty in detecting and rejecting unsuitable
On a broader scale, Richard Schromm (telephone interview, July 1990),
president-elect of the American Association of School Personnel Administrators
and associate superintendent of personnel services, Santa Clara (California)
County Office of Education, reports that the issue of "wrongful discharge"--when
for any reason you fire someone shortly after hiring them because your
initial screening failed--is a major concern of personnel administrators
WHAT ARE THE DISTRICT'S LIABILITIES?
In a report for the American Society for Personnel Administration, Michael
Lotito and Margaret Bryant (1988) sum up the twin problems of background
checks: "Say too much, and risk a lawsuit; ask too little, and risk a lawsuit."
If you "say too much" when asked about an employee, you can be liable
for defamation, which Black's Law Dictionary defines as "the offense of
injuring a person's character, fame, or reputation by false and malicious
statements." Defamation actions require that "hurtful statements" be "published"
to another person--for example, to a prospective employer. Citing legal
action taken by employees who were fired for reasons other than those officially
listed in their personnel records, Lotito and Bryant urge accuracy in all
employee evaluations: "Truth is a complete defense to a charge of defamation."
If you "ask too little" when checking on a person, you can open yourself
to a negligent hiring charge. A third party, such as a parent, can sue
the district if employees are hired without thorough background checks
and then commit a crime of any sort. This issue received attention from
a U.S. district court in a Cleveland, Oklahoma, case. The court ruled that
the school district had failed to investigate the background of a teacher
who was hired with a molestation conviction on his record and then convicted
of a second sexual abuse charge while working for the district (David Splitt
The case hinged on evidence that a relative of the teacher had telephoned
the district to warn that the teacher had "pedophile tendencies." Lawyers
for the parents of the boys involved argued successfully that the district
"showed a willful disregard or a deliberate indifference" to the students'
safety. The district is appealing the case on the basis of the "limited
duty of school officials"--Oklahoma has no laws requiring background investigations
on persons who otherwise meet the qualifications for the jobs they are
WHAT CAN YOU DO TO BE CAREFUL?
Many states have made FBI checks mandatory for teacher certification.
Some, like California, require fingerprint checks of applicants for all
school positions. The existence of this requirement, Schromm has found,
discourages persons with more serious offenses on their records. If FBI
checks are not mandatory, Zakariya recommends checking local police records.
The police have the option of initiating FBI checks should they or the
school officials have any question. Also check the registries of known
child abusers that most states maintain. Lotito and Bryant offer advice
on how to protect against both defamation and negligent hiring: Scrupulously
keep copies of supporting documentation and make sure all oral or written
statements about former employees relate strictly to work issues. When
employees leave, obtain permission to give information to potential employers
who may request it. The permission should include a release from all claims
that might arise from giving such references.
Route all inquiries to professionals trained in the legal constraints
on releasing information. Respond only to requests from persons who have
clearly identified who they are and what their needs are for such information.
To protect against hiring negligence, obtain as many references as possible
and check them carefully. Document the investigation, including each time
you request a reference. Be thorough when interviewing and take complete
notes, including explanations from the applicant for all gaps in employment
Ask if an applicant "has ever been convicted of a crime." (That information
is public record and cannot be construed as invasion of privacy.) Give
the applicant a chance to respond in advance to any controversial data
that might arise from checking with a former employer. Have applicants
sign release forms allowing the district to obtain information from former
employers. In those states where employees have access to their own personnel
files, ask them to request those files.
In checking references, Schromm suggests "seeking out those not listed
as references who might know something about the applicant."
WHAT ARE THE KEY POINTS TO IDENTIFY IN POLICY STATEMENTS?
A joint statement by the American Association of School Administrators
and the National Association of State Boards of Education offers the following
guidelines for dealing with employees and events relating to the sexual
abuse of children:
- Each state should routinely check for criminal convictions and review
its statutes to clearly identify the authority and procedures relating
to complaints and hearings, penalties and prosecution, and issues of rehabilitation
- Local written policies should apply to all school employees, center
on the problem of child abuse, and not be used to regulate employee sexual
- Clearly explain for parents and students how the reporting and handling
of allegations regarding sexual abuse will proceed.
- Define the rights and responsibilities of all parties, including how
the school will relate to social services and criminal justice systems.
- Provide for procedural due process to protect employee rights.
- When employees are allowed to resign and no criminal proceedings initiated,
records should reflect both the resignation and the circumstances surrounding
it. Also, should the employee successfully complete a counseling/treatment
program, that information should also be included in the file.
WHERE CAN YOU GO FOR HELP?
The Teacher Identification Clearinghouse, maintained by the National
Association of State Directors of Teacher Education and Certification (NASDTEC),
provides a nationwide database of teachers whose certifications have been
denied, revoked, or suspended over the past ten years. States, not individual
districts, join the clearinghouse, which distributes a monthly update of
the names, known aliases, birth dates, and Social Security numbers of all
persons whose certification was withheld by member states. As of July 1990,
according to NASDTEC Executive Director Donald Hair (telephone interview,
1990), forty-two states had signed clearinghouse agreements. When someone
applies to your district, check with your state offices to find out if
that person is listed by the clearinghouse.
If the position is particularly important, consider spending the extra
money to use a company specializing in checking credentials. Keep in mind,
Zakariya cautions, that such companies legally may be considered your agents.
For positions with financial responsibility, run consumer credit checks
If you have to do all your own checking, a comprehensive handbook, "The
Guide to Background Investigations" (Richard Long 1989), outlines the procedures
for obtaining criminal, court, workers' compensation, education, and driving
records. Published by the National Employment Screening Services (NESS),
the guide describes how to go about checking records and gives each state's
policies regarding information access. Details include the procedures,
contacts, telephone and fax machine numbers, costs, and turnaround times
for each type of record checking. State cross-reference listings let you
backtrack from a city to the county that controls its criminal records.
American Association of School Administrators and National Association
of State Boards of Education. "Sexual Abuse of Children. A Joint Statement."
Long, Richard. The Guide to Background Investigations. National Employment
Screening Services, Inc., 1989. (Address: 8801 S. Yale, Tulsa, OK 74137-3575.
Single issue, $95.00. Telephone 918-491-9936.)
Lotito, Michael J., and Margaret R. Bryant. "Reference Checking: Are
the Professional's Hands Tied?" Human Resource Management Legal Report.
American Society for Personnel Administration, Spring 1988. (Address: ASPA,
606 N. Washington St., Alexandria, VA 22314. 800-255-2772.)
Splitt, David A. "School Law: Background Checks." The Executive Educator
10, 3 (March 1988): 12. EJ 367 366.
Titus, Richard M., and Carol J. DeFrances. "Criminal Record Checks of
Public School Employment Applicants." September 1989. 29 pages. ED 311
Zakariya, Sally Banks. "How You Can Identify People Who Shouldn't Work
with Kids." The Executive Educator 10, 8 (August 1988): 17-21. EJ 374 906.