Just over a year ago, on June 1, 2018, New Jersey’s P.L. 2018 c. 5 (codified at N.J.S.A. 18A:6-7.6-7.13), commonly known as the “pass the trash” law, went into effect. The law, among other things, imposes stricter background check requirements related to child abuse and sexual misconduct for school and school-contracted service provider employees, as well as penalties for noncompliance. These requirements are in addition to the already-existing criminal background check requirements for school employees.

The “pass the trash” legislation resulted, in large part, from a series of high-profile teacher sexual misconduct cases that received significant media coverage in a relatively short time prior to the law’s passage. The law was passed to address situations where an employee who has engaged in questionable conduct involving children is encouraged to seek other employment, usually in exchange for a neutral employment reference — a practice that has been dubbed, “passing the trash.”

While it is too early to judge the law’s impact, it has not completely eliminated concerns and reports about “passing the trash.” For example, this spring, a teacher who left multiple school districts following allegations of sexual misconduct was reportedly employed as a substitute teacher through a contracted service provider in a different district.

Sweeping Change in Background Check Requirements School districts’ concerns about “passing the trash” garnered national attention in the past decade, as districts across the country struggled to obtain information about abuse and misconduct by a potential district employee while respecting an applicant’s right to privacy.

The Every Student Succeeds Act (“ESSA”), signed into law in 2015, sought to address this issue by requiring that states and local education agencies (“LEAs”) receiving ESSA funding have laws, regulations, or policies in place that, at minimum and with limited exceptions, prohibit school employees, contractors, agents, LEAs and state agencies from providing assistance to an employment applicant or contract vendor in obtaining a school district appointment, if that individual or agency “knows, or has probable cause to believe,” that the applicant or vendor violated the law by engaging in sexual misconduct in regard to student or minor. See 20 U.S.C. § 7926.

Around the same time that the ESSA requirement went into effect, the harm to New Jersey students and school districts caused by “passing the trash” was highlighted by several high-profile court cases — one such example being the New Jersey Appellate Division’s 2016 decision in Child M. v. Fennes.

In Child M., the Appellate Division considered whether to hold a school district employee’s former school district liable when, after the teacher left his former district, he was provided with a neutral employment reference pursuant to the terms of a separation agreement, even though there were allegations that he sexually abused several female students. The teacher then sexually abused a student in his new school, and was later criminally prosecuted.

The Appellate Division found that though the former district failed to fulfill statutory reporting requirements, it did not have an affirmative obligation to report his conduct to the next school at which he was employed, particularly where the former district was not asked for this information.

Notwithstanding the district’s asserted failure to report the suspicious conduct, the court held that, if the matter proceeded to trial, a jury could reasonably find that the former district’s failure to take steps to prevent the teacher from being employed in another district and/or shielding of the teacher’s conduct from disclosure to other employers could subject the former district to liability under a negligence theory.

Additionally, the court determined that a jury could also reasonably find that the former district could be held liable under the theory that its failure to take action caused the abuse.

Accordingly, though the court did not impose liability on the former district for its failure to report the teacher’s conduct to potential employers and did not find that it misrepresented the teacher’s work history, it allowed the claims for negligence and injury caused by the district’s failure to take action to go forward.

A detailed review of New Jersey’s “pass the trash” law reveals that applicants for a position involving direct contact with students at a school, or with a school-contracted service provider, must produce contact information for the applicant’s current employer as well as former employers over the last 20 years, where the applicant was employed in a school district or in a position involving direct contact with children.

Additionally, the law requires, among other things, that an applicant provide a written statement addressing whether the applicant, due to allegations of misconduct or abuse: has been the subject of any child abuse or sexual misconduct investigation (unless allegations were found to be false or the alleged incident was unsubstantiated); was subject to discipline or separation from employment (voluntary or involuntary) or had a license or certificate suspended, surrendered, or revoked.

Districts must contact the employers listed by the applicant and request the dates of employment, as well as request a statement that is substantially similar to that which must be provided by the applicant as discussed above. Employers receiving this request must respond within 20 days.

The law also imposes penalties for noncompliant applicants, and prohibits districts from entering into agreements, such as severance or settlement agreements like the agreement in effect in the Child M. case.

“Passing the Trash” — Liability Under Other Laws New Jersey’s “pass the trash” law does not impose a reporting obligation on applicants or employers where allegations of abuse or misconduct were not substantiated. However, this spring, a federal court case in the U.S. Court of Appeals for the Third Circuit, which covers New Jersey and Pennsylvania, looked at the issue of whether liability could be imposed on an employee’s former or current district under other laws in a circumstance where an employee was investigated for sexual misconduct but the claims were unsubstantiated.

In the case of, Kobrick v. Stevens, a former student who had been the victim of sexual misconduct by a high school band teacher brought claims against two Pennsylvania districts — the district in which the teacher formerly worked, as well as the district where the teacher was employed when the misconduct occurred.
The matter was filed under 42 U.S.C. § 1983, which permits individuals to bring lawsuits against state and local government entities for constitutional and civil rights violations. School district liability under Section 1983 can be established, among other ways, by showing a link between a person’s injury and the government policy or custom, or by showing that the school district failed to take affirmative action despite an obvious need to do so, such that the failure to act shows “deliberate indifference” to the other person’s constitutional rights.

According to the facts of the case, the band director had been investigated following rumors of sexual misconduct involving a student (“Student A”) at the school district in which he previously worked. That district investigated the misconduct allegations by interviewing Student A and her parent, both of whom denied the allegations. Ultimately, the teacher was not charged with misconduct following that investigation, according to court records.

The band director moved on to the second district and subsequently had a sexual relationship with the plaintiff, Student B. As with the incident in the former district, Student B, at first, denied the affair when questioned by school authorities, but later disclosed the affair to her mother during her first year in college. The teacher was subsequently criminally convicted and served time.

In regard to the prior district, Student B alleged that the district demonstrated deliberate indifference by failing to respond to rumors that the teacher engaged in sexual conduct with Student A. Though the court found that in hindsight, the prior district could have done more to investigate those rumors, the court ultimately determined that the prior district was not deliberately indifferent to the asserted complaints by ending the investigation after the interview with the parent and that student.

Regarding the district that she attended, Student B alleged, among other things, that the district negligently hired the teacher. However, the court found that the district was not negligent because his application did not tip off administrators to potential risks of misconduct. He had no prior criminal record or record of child abuse, and had three favorable letters of recommendation.

Though the districts were not held liable under Section 1983 as discussed, the court’s decision leaves open whether, under different facts, the former district could have been found liable based on the lack of thoroughness of its investigation, and whether the current district could have been in possession of any facts that could indicate a risk of misconduct. Significantly, the facts of this case occurred prior to the passage of Pennsylvania’s “pass-the-trash” law, which contains substantially similar language and requirements as New Jersey’s law. Whether consideration of similar facts in conjunction with the “pass the trash” law would change the outcome remains to be seen.

One Year Later, Is Reform Needed? New Jersey stands out as one of a handful of states with a more robust “pass the trash” law. The language of the statute is substantially similar to other states with similar provisions on the books, including, but not limited to, Pennsylvania and Connecticut. However, some of these other states have imposed additional requirements and penalties for noncompliance with their own “pass the trash” legislation.

For example, Pennsylvania’s law, among other things, includes additional checks for school districts, possible penalties for noncomplying employers who receive requests for information, an additional requirement that an employee hired on a provisional basis pending review must not be permitted to work alone with children and must work in the vicinity of a permanent employee, and specific provisions applying to substitutes and independent contractors. Additionally, Pennsylvania and Connecticut’s laws do not limit the time period in which applicants must report employment in a school or other position directly working with children, and the latter’s law shortens the time period for employers to respond once they receive a background check inquiry.

Texas’ law contains specific language that permits suspension or revocation of a certificate, imposition of other sanctions, or withholding of a certificate held by a person who helps someone obtain employment at a school district or charter school who the employee knows previously engaged in sexual misconduct with a minor or student in violation of the law.

So far, legislation has not been proposed to heighten the requirements of New Jersey’s “pass the trash” law, though implementation and monitoring issues tied to the “pass the trash” law are also currently being considered by the New Jersey legislature. A bill proposed this legislative session, A-4407, would, if passed, require the New Jersey Department of Education to collect data on and report to the legislature about school districts’ implementation of the law.

It should be noted that in addition to the above bill, a change in a related law regarding the statute of limitations on sexual abuse, assault, and other misconduct claims may have a quantitative impact on the disqualification of applications under the “pass the trash” law going forward. On May 13, 2019, Gov. Murphy signed S-477 into law, which will go into effect on Dec. 1, 2019. The new law extends the statute of limitations for civil actions stemming from sexual abuse and misconduct as follows:

  • Claims resulting from sexual assault, sexual abuse, or other sexual misconduct specified in the law committed against a minor on or after the effective date of the law may be filed up until the date that the victim turns 55 or within seven years from the date of “reasonable discovery of the injury and its causal relationship to the act”— whichever date is later;
  • Claims resulting from a commission of a sexual assault or any other crime of a sexual nature against an adult occurring on or after the effective date of the law must be filed “within seven years from the date of reasonable discovery of the injury and its causal relationship to the act;” and
  • Claims resulting from sexual assault, abuse or other misconduct specified in the statute that occurred prior to the effective date of the law, and which otherwise would be time-barred, may be brought within two years of the effective date of the law.

The governor signed the bill with the caveat that legislation be passed in the future so that the same standard of liability would be used for claims filed against public entities as used for claims against religious and nonprofit organizations. Proposed legislation, S-3739/A-5392 which would implement this change, passed both houses of the state Legislature in June.

How the new law will impact school districts, particularly in regard to curbing “passing the trash,” remains to be seen.

School districts should continue to review and ensure they are in compliance with the “pass the trash” law. For more information about the law as well as about investigations of teacher sexual misconduct, board members should consult with their board attorney or call the New Jersey School Boards Association Legal and Labor Relations Department at (609) 278-5254.

Katrina Homel is an NJSBA Legal and Labor Relations Department counsel.