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INFORMATIONAL LETTER NO. 76
POLICY CODE: GCF
TO: Superintendents of Schools
DATE: May 22, 2001
RE: Update on Criminal History Records Checks
I would appreciate it if you would share this letter with your Board chairs.
As you know, for the past nine months the Department of Education has been screening education personnel for criminal history records based on fingerprinting before issuing a license as a teacher, administrator or support staff member. In January, the Attorney General ruled that current statute prohibits the Department of Education from releasing any information about the results of this process. In response, the Joint Standing Committees on Education and Criminal Justice worked with the Department of Education, Maine School Management Association, and the Maine Education Association to develop language that would permit the release of certain information. This bill, LD 1765, is before the Legislature this afternoon. It identifies the specific information that the State Police can release, relating to the number of individuals fingerprinted. It identifies the specific information that the Department of Education can release about the results of the records checks, most importantly the following excerpt:
The aggregate number that represents the number of educational personnel applicants who have been fingerprinted; and the aggregate number that represents the sum total of educational personnel applicants that the commissioner has denied, refused to renew, revoked or suspended a certificate, authorization or approval, or determined to be ineligible for employment based on the results of the criminal history records check.
We stand ready in the Department of Education to report out the total number of individuals fingerprinted and the total number disqualified from licensing as a result of this law as soon as LD 1765 is enacted. Until this happens, please accept my assurance that we have evidence that the law is effective both in finding individuals with serious convictions and as a deterrent.
You may be aware that the MSAD 34 Board of Directors has voted to request that “a teacher’s record outweigh failure to comply with the criminal background check as a determinant of retaining teacher certification.” This position is taken in support of employees who believe that a background check of experienced teachers “constitute unreasonable search,” which suggests that the statute infringes on individual Constitutional rights. The Attorney General researched this over a year ago and found that records checks based on fingerprinting do not constitute unreasonable search and that this position has been upheld in court. For your information a copy of my letter to the MSAD 34 Board is attached. The MSAD 54 Board of Directors took similar action.
I would like to remind you of some of the essential points about Maine’s Criminal History Records Check requirement. First, Maine’s school employees are among the finest in the nation and Maine has the safest schools. However, given the national trend for states to conduct criminal background checks on school employees and in order to keep Maine schools safe there must be assurances that individuals with serious criminal convictions are kept out of schools.
Background Checks Protect All Children
The sole intent of this law is to protect children. Background Checks are worth the inconvenience to school personnel and the cost to the state. In 20 months of taking fingerprints and 8 months of checking records, there is already evidence that this is serving as an effective deterrent for individuals with serious convictions.
Maine joins 39 Other States with Similar Legislation to Protect Children
Maine is well within the mainstream of other states in this approach. Background checks and fingerprinting have become the national standard. As of spring 2000, 40 states require background checks, and 34 require fingerprints to ensure accuracy and do interstate FBI checks. 21 states besides Maine require checks for all teachers and administrators, not just new hires.
Background Checks Identify Known Perpetrators
All school employees must be fingerprinted once, and they must meet the state and federal background checks once. The federal check is repeated every five years only if the individual has had interrupted service. Fingerprinting is about prevention, not accusation. It is about preventing harm to children, which is a fundamental concern of all Maine citizens. It is not about accusing all school employees of wrongdoing. There is no legal right for individuals with a criminal conviction to work in public schools.
Implementation Is Ahead of Schedule
There are 46,000 teachers, administrators, support staff, coaches, and substitutes employed in Maine schools. With projected turnover and the number of people who are licensed but do not work in a school, there will be over 70,000 people who must meet the criminal record check requirement over the first five years. At this time, fingerprinting is well ahead of the planned five-year implementation schedule.
Only Serious, Relevant Crimes are Considered Within a Narrow Timeframe
Maine statute puts restrictions on the convictions that can be considered. A conviction for child abuse or exploitation within the past 5 years results in automatic denial of a license. Child abuse crimes older than 5 years, or any other types of crimes, must be considered on a case-by-case basis with appeal rights. A non-child abuse felony conviction may only be considered within 3 years of discharge from the justice system, and a misdemeanor may only be considered within 3 years of discharge from the justice system and only if relevant to the job.
Strict Confidentiality of Information is Protected
Criminal history information is provided by the State Police to the Department of Education, protected by strict confidentiality. MRSA Title 20 §6103.3 states, “Any information obtained pursuant to this section is confidential. The results of criminal history record checks received by the Commissioner are for official use only and may not be disseminated outside the department.” The Attorney General has ruled that this prohibits release of the number of individuals disqualified, the number with a conviction history, and even of the number who have been fingerprinted.
Thank you for your continuing support of this important law. I will keep you informed to the extent the law permits as implementation proceeds.
Following is the letter that I sent to both SAD # 34 Board of Directors and all Maine school board chairs:
May 14, 2001
Chair, Board of Directors
PO Box 363
Belfast, ME 04915
Dear Ms. Gleeson:
I have received your letter asking the Department to support reducing penalties for non-compliance with Maine’s criminal history background check requirement for school employees, or to create an exemption to the background check requirement based on the overall record of an employee.
I cannot agree with your position because to do as you recommend would essentially remove meaningful penalties for noncompliance, effectively overturn the statute for all personnel in every school district, and eliminate this threshold of basic protection for every child and community in Maine. Be advised that because your letter has been copied to the Members of the 120th Maine Legislature, I am similarly copying this reply to each of them, as well as to the chairs of Maine’s school boards.
The background check requirement is a simple, non-accusatory precaution applied to every school employee – administrators, teachers, and all other staff alike. The checks are motivated by one simple goal: to prevent individuals with serious criminal records from working in schools with our children. I was among the very first group of educators in the state to be fingerprinted, and found the process to be neither burdensome nor intrusive. The requirement is administered fairly and consistently like any other requirement for licensure. Without fulfilling the requirement, an individual may not receive a license. Without a license, an individual may not lawfully be employed in Maine schools.
Let me remind you of the facts about this law. Maine is not alone, or even among the leaders in the nation in our requirement to conduct a criminal history records check based on fingerprints before issuing a license to work in a Maine school. More than 40 states require background checks for school employees. Of these, 34 states use fingerprinting as a tool to carry out the checks. The background check requirement is applied in a balanced and appropriate manner. Convictions for child abuse or exploitation are disqualifying, and there are guidelines for considering other felonies and misdemeanors.
To abandon enforcement of this law suggests that we accept the risk of employing individuals with such serious convictions. Permitting employees to continue to serve after refusing to comply with the background check law is certainly not consistent with providing the strongest possible assurance about the safety of our students. It would put the choice of whether to comply with the law in the hands of each individual employee – whether the refusal to comply is based on a statement of conscience, a serious criminal record the individual would prefer not to disclose, or any other reason. It would make enforcement of the law contingent upon someone’s subjective view of whether an individual’s stated reason for noncompliance is good and principled, or not; and whether the failure to comply with the law is outweighed by a good record, or not.
Your letter states that your concerns are based on teachers’ threats to resign or retire based on their views that this law constitutes an unwarranted intrusion and an unreasonable search. At the request of the Legislature’s Education Committee, this question of law regarding the constitutionality of background checks was thoroughly researched last year by Maine’s Attorney General. The Attorney General concluded that Maine’s background check law is fully constitutional. It is simply not appropriate to suggest that individuals should be permitted to take the law into their own hands, and be exempt from any consequences, as a result of their own, erroneous views about the constitutionality of a law.
Tens of thousands of Maine citizens have been subject to criminal background checks as a result of military service, employment in many professional occupations, and even as a precautionary measure when they were school children. Do licensed securities dealers deserve more scrutiny than those who work with our school children? The burden of any precaution must be weighed against the goal of protecting our children from preventable harm. With the interests of children foremost, the Maine School Boards Association and the Maine School Superintendents Association have strongly supported background checks in the past, and continue to do so.
Although I respect all individuals’ rights of conscience, deliberately sacrificing one’s teaching career to avoid participating in a simple, non-accusatory safeguard for our school children – that is reasonable in scope and constitutional in its application – is an unfortunate decision. Individuals who have made such an unfortunate decision should not be rewarded by avoiding the consequences and thereby being allowed to take the law into their own hands; nor is it appropriate for such individuals to suggest that they have been forced by anyone to such a regrettable decision that they arrived at of their own will.
To create an exemption from background checks for teachers with a good record would similarly undermine the uniform assurance the law seeks to give that individuals with serious criminal records are not entrusted with the care of our school children. Unfortunately, threats to our children do not always come from only inexperienced employees, nor only from mediocre employees. Indeed, to start creating such exemptions would make the background check law into what it currently is not and should never be: a subjective vehicle for accusation, based on the notion that an individual is more likely to pose a threat to children because the individual’s employment history is perceived to be not as good as that of another individual.
Make no mistake about it: there is already considerable evidence that the background check requirement is working to make Maine’s schools safer, both by operating as a deterrent and by identifying individuals with serious criminal records who otherwise would have been able to conceal their criminal records with impunity. If the Legislature approves a pending measure that would allow the Department to share aggregate statistical information about the operation of the law, I have no doubt that the necessity and efficacy of the background check requirement will become clear to all.
The position of the Maine Department of Education is that the certification laws will and should be uniformly applied and enforced fairly and equitably for all. Individuals who have not complied with the requirement for a background check cannot lawfully be employed in our schools.
Respectfully, I believe the position you have taken on this matter is dangerously inappropriate, and I would urge you to reconsider the implications of that position.
J. Duke Albanese
Commissioner of Education
Cc: Governor Angus S. King, Jr.
Members, 120th Maine Legislature
School Board Chairs