[Congressional Record Volume 162, Number 91 (Thursday, June 9, 2016)]
[Senate]
[Pages S3727-S3728]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 4609. Mr. ALEXANDER submitted an amendment intended to be proposed
by him to the bill S. 2943, to authorize appropriations for fiscal year
2017 for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
Strike section 578 and insert the following:
SEC. 578. CRIMINAL BACKGROUND CHECKS FOR SCHOOL EMPLOYEES.
(a) In General.--Subpart 2 of part F of title VIII of the
Elementary and Secondary Education Act of 1965 (20 U.S.C.
7901 et seq.) is amended by adding at the end the following:
``SEC. 8549D. CRIMINAL BACKGROUND CHECKS FOR SCHOOL
EMPLOYEES.
``(a) Criminal Background Check Requirements.--
``(1) In general.--Each State educational agency and local
educational agency that receives funds under this Act shall
have in effect policies and procedures that require a
criminal background check for each school employee in each
covered school served by such State educational agency and
local educational agency.
``(2) Requirements.--A background check required under
paragraph (1) shall be conducted and administered by--
``(A) the State;
``(B) the State educational agency; or
``(C) the local educational agency.
``(b) State and Local Uses of Funds.--A State educational
agency or local educational agency that receives funds under
this Act may use such funds to establish, implement, or
improve policies and procedures on background checks for
school employees required under subsection (a) to--
``(1) expand the registries or repositories searched when
conducting background checks, such as--
``(A) the State criminal registry or repository of the
State in which the school employee resides;
``(B) the State-based child abuse and neglect registries
and databases of the State in which the school employee
resides;
``(C) the Federal Bureau of Investigation fingerprint check
using the Integrated Automated Fingerprint Identification
System; and
``(D) the National Sex Offender Registry established under
section 119 of the Adam Walsh Child Protection and Safety Act
of 2006 (42 U.S.C. 16919);
``(2) provide school employees with training and
professional development on how to recognize, respond to, and
prevent child abuse;
``(3) develop, implement, or improve mechanisms to assist
covered local educational agencies and covered schools in
effectively recognizing and quickly responding to incidents
of child abuse by school employees;
``(4) develop and disseminate information on best practices
and Federal, State, and local resources available to assist
local educational agencies and schools in preventing and
responding to incidents of child abuse by school employees;
``(5) develop professional standards and codes of conduct
for the appropriate behavior of school employees;
``(6) establish, implement, or improve policies and
procedures for covered State educational agencies, covered
local educational agencies, or covered schools to provide the
results of background checks to--
``(A) individuals subject to the background checks in a
statement that indicates whether the individual is ineligible
for such employment due to the background check and includes
information related to each disqualifying crime;
``(B) the employer in a statement that indicates whether a
school employee is eligible or ineligible for employment,
without revealing any disqualifying crime or other related
information regarding the individual;
``(C) another employer in the same State or another State,
as permitted under State law, without revealing any
disqualifying crime or other related information regarding
the individual; and
``(D) another local educational agency in the same State or
another State that is considering such school employee for
employment, as permitted under State law, without revealing
any disqualifying crime or other related information
regarding the individual;
``(7) establish, implement, or improve procedures that
include periodic background checks, which also allows for an
appeals process as described in paragraph (8), for school
employees in accordance with State policies or the policies
of covered local educational agencies served by the covered
State educational agency;
``(8) establish, implement, or improve a process by which a
school employee may appeal the results of a background check,
which process is completed in a timely manner, gives each
school employee notice of an opportunity to appeal, and
instructions on how to complete the appeals process;
``(9) establish, implement, or improve a review process
through which the covered State educational agency or covered
local educational agency may determine that a school employee
disqualified due to a crime is eligible for employment due to
mitigating circumstances as determined by a covered local
educational agency or a covered State educational agency;
``(10) establish, implement, or improve policies and
procedures intended to ensure a covered State educational
agency or covered local educational agency does not knowingly
transfer or facilitate the transfer of a school employee if
the agency knows that employee has engaged in sexual
misconduct, as defined by State law, with an elementary
school or secondary school student;
``(11) provide that policies and procedures are published
on the website of the covered State educational agency and
the website of each covered local educational agency served
by the covered State educational agency;
``(12) provide school employees with training regarding the
appropriate reporting of incidents of child abuse under
section 106(b)(2)(B)(i) of the Child Abuse Prevention and
Treatment Act (42 U.S.C. 5106a(b)(2)(B)(i)); and
``(13) support any other activities determined by the State
to protect student safety or improve the comprehensiveness,
coordination, and transparency of policies and procedures on
criminal background checks for school employees in the State.
``(c) No Private Right of Action.--Nothing in this section
shall be construed to create a private right of action if a
State, covered State educational agency, covered local
educational agency, or covered school is in compliance with
State regulations and requirements concerning background
checks.
``(d) Background Check Fees.--Nothing in this section shall
be construed as prohibiting States or local educational
agencies from charging school employees for the costs of
processing applications and administering a background check
as required by State law, provided that the fees charged to
school employees do not exceed the actual costs to the State
or local educational agency for the processing and
administration of the background check.
``(e) State and Local Plan Requirements.--Each plan
submitted by a State or local educational agency under title
I shall include--
``(1) an assurance that the State and local educational
agency has in effect policies and procedures that meet the
requirements of this section; and
``(2) a description of laws, regulations, or policies and
procedures in effect in the State
[[Page S3728]]
for conducting background checks for school employees
designed to--
``(A) terminate individuals in violation of State
background check requirements;
``(B) improve the reporting of violations of the background
check requirements in the State;
``(C) reduce the instance of school employee transfers
following a substantiated violation of the State background
check requirements by a school employee;
``(D) provide for a timely process by which a school
employee may appeal the results of a criminal background
check;
``(E) provide each school employee, upon request, with a
copy of the results of the criminal background check,
including a description of the disqualifying item or items,
if applicable;
``(F) provide the results of the criminal background check
to the employer in a statement that indicates whether a
school employee is eligible or ineligible for employment,
without revealing any disqualifying crime or other related
information regarding the individual; and
``(G) provide for the public availability of the policies
and procedures for conducting background checks.
``(f) Technical Assistance to States, School Districts, and
Schools.--The Secretary, in collaboration with the Secretary
of Health and Human Services and the Attorney General, shall
provide technical assistance and support to States, local
educational agencies, and schools, which shall include, at a
minimum--
``(1) developing and disseminating a comprehensive package
of materials for States, State educational agencies, local
educational agencies, and schools that outlines steps that
can be taken to prevent and respond to child sexual abuse by
school personnel;
``(2) determining the most cost-effective way to
disseminate Federal information so that relevant State
educational agencies and local educational agencies, child
welfare agencies, and criminal justice entities are aware of
such information and have access to it; and
``(3) identifying mechanisms to better track and analyze
the prevalence of child sexual abuse by school personnel
through existing Federal data collection systems, such as the
School Survey on Crime and Safety, the National Child Abuse
and Neglect Data System, and the National Crime Victimization
Survey.
``(g) Reporting Requirements.--
``(1) Reports to the secretary.--A covered State
educational agency or covered local educational agency that
uses funds pursuant to this section shall report annually to
the Secretary on--
``(A) the amount of funds used; and
``(B) the purpose for which the funds were used under this
section.
``(2) Secretary's report card.--Not later than July 1,
2018, and annually thereafter, the Secretary, acting through
the Director of the Institute of Education Sciences, shall
transmit to the Committee on Health, Education, Labor, and
Pensions of the Senate and the Committee on Education and the
Workforce of the House of Representatives a national report
card that includes--
``(A) actions taken pursuant to subsection (f), including
any best practices identified under such subsection; and
``(B) incidents of reported child sexual abuse by school
personnel, as reported through existing Federal data
collection systems, such as the School Survey on Crime and
Safety, the National Child Abuse and Neglect Data System, and
the National Crime Victimization Survey.
``(h) Rules of Construction Regarding Background Checks.--
``(1) No federal control.--Nothing in this section shall be
construed to authorize an officer or employee of the Federal
Government to--
``(A) mandate, direct, or control the background check
policies or procedures that a State or local educational
agency develops or implements under this section;
``(B) establish any criterion that specifies, defines, or
prescribes the background check policies or procedures that a
State or local educational agency develops or implements
under this section; or
``(C) require a State or local educational agency to submit
such background check policies or procedures for approval.
``(2) Prohibition on regulation.--Nothing in this section
shall be construed to permit the Secretary to establish any
criterion that--
``(A) prescribes, or specifies requirements regarding,
background checks for school employees;
``(B) defines the term `background checks', as such term is
used in this section; or
``(C) requires a State or local educational agency to
report additional data elements or information to the
Secretary not otherwise explicitly authorized under this
section or any other Federal law.
``(i) Definitions.--In this section--
``(1) the term `covered local educational agency' means a
local educational agency that receives funds under this Act;
``(2) the term `covered school' means a public elementary
school or public secondary school, including a public
elementary or secondary charter school, that receives funds
under this Act;
``(3) the term `covered State educational agency' means a
State educational agency that receives funds under this Act;
and
``(4) the term `school employee' includes, at a minimum--
``(A) an employee of, or a person seeking employment with,
a covered school, covered local educational agency, or
covered State educational agency and who, as a result of such
employment, has (or, in the case of a person seeking
employment, will have) a job duty that includes unsupervised
contact or interaction with elementary school or secondary
school students; or
``(B) any person, or any employee of any person, who has a
contract or agreement to provide services with a covered
school, covered local educational agency, or covered State
educational agency, and such person or employee, as a result
of such contract or agreement, has a job duty that includes
unsupervised contact or unsupervised interaction with
elementary school or secondary school students.''.
(b) Table of Contents.--The table of contents in section 2
of the Elementary and Secondary Education Act of 1965 is
amended by inserting after the item relating to section 8549C
the following:
``Sec. 8549D. Criminal background checks for school employees.''.
(c) Background Checks for Department of Defense Schools.--
(1) In general.--The Secretary of Defense shall have the
authority, pursuant to chapter 47 of title 10, United States
Code (the Uniform Code of Military Justice), and subtitle E
of the Victims of Child Abuse Act of 1990 (42 U.S.C. 13041),
to establish regulations to implement policy, assign
responsibilities, and provide procedures to conduct criminal
history checks on individuals involved in the provision of
child care services (as defined in section 231 of such Act)
for children under the age of 18 in Department of Defense
domestic dependent elementary and secondary schools
established under section 2164 of title 10, United States
Code.
(2) Contents of criminal history checks.--The criminal
history checks established in the regulations required under
paragraph (1) may include--
(A) a search of the State criminal registry or repository
of the State in which the individual resides;
(B) a search of State-based child abuse and neglect
registries and databases of the State in which the individual
resides;
(C) a Federal Bureau of Investigation fingerprint check
using the Integrated Automated Fingerprint Identification
System; and
(D) a search of the National Sex Offender Registry
established under section 119 of the Adam Walsh Child
Protection and Safety Act of 2006 (42 U.S.C. 16919).
(d) Prohibition On Aiding And Abetting Sexual Abuse.--
(1) In general.--Commencing not later than 2 years after
the date of the enactment of this Act, the Secretary of
Defense shall create regulations, policies, or procedures
that prohibit any individual who is a school employee,
contractor, or agent of any Department of Defense domestic
dependent elementary or secondary school established pursuant
to section 2164 of title 10, United States Code, from
assisting a school employee, contractor, or agent in
obtaining a new job, apart from the routine transmission of
administrative and personnel files, if the individual or
agency knows, or has probable cause to believe, that such
school employee, contractor, or agent engaged in sexual
misconduct regarding a minor or student in violation of the
law.
(2) Exceptions.--The requirements of paragraph (1) shall
not apply if the information giving rise to probable cause--
(A)(i) has been properly reported to a law enforcement
agency with jurisdiction over the alleged misconduct; and
(ii) has been properly reported to any other authorities as
required by Federal, State, or local law, including chapter
47 of title 10, United States Code (the Uniform Code of
Military Justice), title IX of the Education Amendments of
1972 (20 U.S.C. 1681 et seq.), and the regulations
implementing such title under part 106 of title 34, Code of
Federal Regulations, or any succeeding regulations; and
(B)(i) the matter has been officially closed or the
prosecutor or police with jurisdiction over the alleged
misconduct has investigated the allegations and notified
school officials that there is insufficient information to
establish probable cause that the school employee,
contractor, or agent engaged in sexual misconduct regarding a
minor or student in violation of the law;
(ii) the school employee, contractor, or agent has been
charged with, and acquitted or otherwise exonerated of the
alleged misconduct; or
(iii) the case or investigation remains open and there have
been no charges filed against, or indictment of, the school
employee, contractor, or agent within 4 years of the date on
which the information was reported to a law enforcement
agency.
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