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Letter from Randi Weingarten to House of Representatives on H.R. 2083


October 22, 2013

U.S. House of Representatives
Washington, D.C. 20515

Dear Representative:

On behalf of the 1.5 million members of the American Federation of Teachers (AFT), I write today to share our views on H.R. 2083, the Protecting Students from Sexual and Violent Predators Act, introduced by Rep. George Miller (D-CA).

As education professionals who are dedicated to helping all students reach their potential, the AFT strongly supports measures that enhance student safety by providing children with safe and secure environments in which to learn. Part of this responsibility includes a shared commitment to supporting policies that bar certain individuals who may pose a threat to children from being eligible to work as school employees whose roles require direct contact with children. That is why we partnered with arbitration expert Kenneth Feinberg to work with us in developing a fair, transparent and expeditious procedure for addressing allegations of teacher wrongdoing. Mr. Feinberg’s recommendations, which establish clear guidelines and a 100-day timeline for the process, were adopted by the AFT executive council in February 2011.

We fully support the spirit of H.R. 2083 and appreciate the seriousness of Rep. Miller’s legislation. However, we want to take this opportunity to offer suggestions for improving and strengthening the bill as it moves through the legislative process. In the end, we are hopeful that our ideas and those of other stakeholders will enhance the bill’s safety provisions while also making sure it does not become overly burdensome to states, schools and employees.

All 50 states and the District of Columbia currently have laws that require background checks for teachers, and 43 states require checks for nonteaching school employees as well. Yet H.R. 2083 does not recognize or make any allowance for states that already set the bar high and already have rigorous, but not fully identical, procedures for denying employment to potentially dangerous individuals. This may result in needlessly duplicative background checks at a time when state and school resources are already stretched thin. It would also be costly to current or prospective employees who may, according to H.R. 2083, have to bear the cost of their own background checks.

We suggest that states with background check laws that are at least as demanding and thorough as those proposed in H.R. 2083 be granted the flexibility and authority to use their own state laws and procedures in place of the new federal rules laid out in the bill. For those states that make use of the federal rules, state procedures should be developed in a way that respects the rights, remedies and procedures afforded school employees under federal, state or local laws (including applicable regulations, executive orders or court orders) or under the terms of collective bargaining agreements, memoranda of understanding, or other agreements between school employees and their employers.

H.R. 2083 requires school districts to perform background checks on all employees (current and potential), and includes a list of offenses that would disqualify an individual from employment in a school. While the processes for performing such checks may vary by state, we suggest that H.R. 2083 adopt the procedures laid out in S. 1086, the bipartisan Child Care and Development Block Grant Act. This bill was reported out of the Health, Education, Labor and Pensions Committee on a voice vote last month and includes provisions for background checks for child care workers. Like the House bill, S. 1086 also requires employers to perform background checks and includes a list of disqualifying offenses, but provides that the state (through a designated lead agency) search the background check databases and then provide the employer with an eligible/ineligible decision. This both eases the burden on employers by not requiring them to sort through raw background check data for compliance with federal law, as well as ensures that individuals will not be disqualified for offenses that have no bearing on their suitability to work with children.

Additionally, a recent study by the National Employment Law Project found that about half of all FBI background checks contain incomplete or inaccurate data—inaccuracies that could harm an individual’s employment prospects under H.R. 2083. The House bill acknowledges the imperfect data in FBI background check reports that the bill relies on by providing for an appeals process to correct data be made available to individuals. We support this provision. However, H.R. 2083 places the burden on individuals not only to prove that the background check data is incorrect, but to ensure the data in the background check databases is corrected. Asking individuals to navigate multiple agencies and bureaucracies to get state and/or federal information corrected at the source is an incredibly burdensome task to require of individuals. 

Finally, recent history has shown that requiring a whole class of employees to obtain background check verification simultaneously can lead to incredible backlogs that result in denied employment for individuals who have done nothing wrong. For example, the post-9/11 port worker background check law (the Maritime Transportation Security Act of 2002) created an average delay of seven months for employees completing the background check process. This caused more than 10,000 port workers to be unemployed while they awaited authorization to work. Two million employees were enrolled in the port worker background check program, while approximately 6 million school employees would be required to go through background checks under H.R. 2083. We therefore suggest that H.R. 2083 apply only to new hires and/or include a time limit of 45 days for the check to be completed, as provided for in S. 1086.

Thank you for considering our views, and we look forward to working with you to improve H.R. 2083 and to ensure the safety of our nation’s students.

Sincerely,

Randi Weingarten
President