The Every Student Succeeds Act ("ESSA") was signed by former President Barack Obama on December 10, 2015 and is the federal law that replaced the previous No Child Left Behind Act. On April 3, 2017, the Michigan Department of Education ("MDE") finalized its ESSA state plan for a more whole-child, well-rounded education for Michigan children and will submit it to the U.S. Department of Education ("USED") after a review by Governor Rick Snyder. The plan will be used to improve educational outcomes for children and hold schools accountable and transparent for that success.

The ESSA also includes a provision in Section 8038 entitled the "Prohibition on Aiding and Abetting Sexual Abuse." The intent is to prevent school employees who have engaged in sexual misconduct with students from being passed from one school district to another, a practice known as "passing the trash." Specifically, the provision requires states, state educational agencies and local school districts that receive federal funding to have laws, regulations and policies that prohibit anyone from assisting a school employee, contractor or agent in obtaining a new job if there is probable cause to believe that such person had engaged in sexual misconduct regarding a minor or student in violation of the law. The provision encourages the reporting of sexual misconduct to the proper authorities and discourages the practice of school districts entering into confidentiality agreements with sexual predators. The ESSA details exceptions to the rule of prohibiting assistance with obtaining a new job. The prohibition does not apply if the alleged sexual misconduct in question was properly reported to a law enforcement agency with jurisdiction and properly reported to other authorities (such as a child welfare agency), including Title IX authorities, and the reporting resulted in one of the following:

• The matter was officially closed or the prosecutor or police notified the school district that there was insufficient information to establish probable cause that the alleged conduct violated the law;
• The employee/contractor/agent was acquitted or otherwise exonerated; or
• The case remains open but there have been no charges filed against, or indictment of, the employee/contractor/agent within four years of the date of the report.

Does the ESSA's "Aiding and Abetting" prohibition sound familiar? It should.

Michigan has its own law aimed at prohibiting "passing the trash." MCL 380.1230b was enacted over 20 years ago. Under Section 1230b of the Michigan Revised School Code ("RSC"), a school or district that formerly employed a teacher is required upon request by a prospective employer to furnish information about "unprofessional conduct" in which that teacher might have engaged during his or her employment. The term "unprofessional conduct" is defined in the statute as "acts of misconduct . . . immorality, moral turpitude, or inappropriate behavior involving a minor, or commission of a crime involving a minor."

While the RSC is state law which is aimed at prohibiting school districts, intermediate school districts and public school academies from employing a teacher who engaged in "unprofessional conduct" at a previous school district (including sexual misconduct), the ESSA is federal law which requires additional, but similar, compliance. The MDE issued formal correspondence on March 9, 2017 charging local and intermediate school districts and public school academies to review the ESSA prohibition on Aiding and Abetting Sexual Abuse and determine if the district has appropriate policies and procedures in place. These policies and procedures should align with the policies and procedures regarding section 1230b of the RSC. In the event of an audit, the MDE will be looking for language that satisfies both federal and state law. 

Once Michigan's ESSA plan is submitted to the USED, it will be reviewed by USED staff, as well as a structured peer review process for specific sections of the plan. ESSA law provides the U.S. Secretary of Education 120 days to review and approve state plans. In the meantime, Clark Hill recommends school districts, intermediate school districts and public school academies review their Administrative Guidelines, particularly in regards to hiring employees and/or Sexual Harassment, and include the following language regarding ESSA's Prohibition on Aiding and Abetting Sexual Abuse:

"A school employee, contractor, or agent of the school district is prohibited from assisting another school employee, contractor or agent in obtaining a new job if the individual knows or has probable cause to believe, that such other employee, contractor or agent engaged in sexual misconduct with a minor or student in violation of the law.

"Assisting" does not include the routine transmission of administrative and personnel files, provided the requirements of reporting unprofessional conduct are followed pursuant to section 1230b of the Michigan Revised School Code, MCL 380.1230b.

Exceptions to giving such assistance may only be made where the exception is authorized by Sec. 8038 of the Every Student Succeeds Act, 20 U.S.C. 7926."