USED & White House
ED Issues New ESSA Guidance on Sexual Abuse

On Wednesday, the U.S. Department of Education (ED) issued a letter to Chief State School Officers offering guidance on protecting students from sexual abuse at school.  The letter notes that the Elementary and Secondary Education Act (ESEA), as amended by the Every Student Succeeds Act (ESSA), requires States and districts to have policies in place prohibiting the “aiding and abetting of sexual abuse.”  When entities apply for federal funds under ESEA, they provided an assurance that all applicable legal requirements, including this one, would be met.  ED’s letter makes it clear that they consider this to be an enforceable part of Title I monitoring, with potential enforcement actions for non-compliance to include placing special conditions on funds or withholding a portion of Title I funds under the General Education Provision Act (GEPA).

ED notes that the intent of this provision is to prevent situations where teachers or other school staff who have engaged in sexual misconduct with a student or other minor have been able to obtain employment at another school, sometimes because the prior school even provides a recommendation to encourage the employee to leave – a practice sometimes colloquially referred to as “passing the trash.”

Under the new ESEA provision (Sec. 8546 of the law as amended), every State, State educational agency (SEA) or local educational agency (LEA) that receives ESEA funds must have in place laws, regulations, or policies that prohibit the SEA, an LEA, or school, as well as any school employee, contractor, or agent, from providing a recommendation of employment for an employee or contractor which it knows, or has probable cause to believe, has engaged in sexual misconduct with a student or minor in violation of the law.  Routine transfers of administrative or personnel files would still be permitted, but the entity could not do any more than that to help the employee obtain new employment.  ED notes that States may pass more rigorous laws or requirements as needed.

Author: JCM

About the Author

Julia Martin is an attorney with the Washington, DC law firm of Brustein & Manasevit, PLLC. Established in 1980, the Firm is nationally recognized for its federal education regulatory and legislative practice, providing legal advice regarding compliance with all major federal education programs as well as the federal grants management requirements, including the Education Department General Administrative Regulations (EDGAR). In addition, they work with agencies on federal spending flexibility, allowability, policies and procedures, audit defense and resolution and legislative updates. The Firm provides government relations services for the National Title I Association.