In many cases, agreements between school districts and teachers unions even promote hiding records of misconduct and sexual assault, DFI says.

The DFI report (pdf), titled “Catching the Trash,” is based on federal data from 2015 to 2018 for over 97,000 schools across the United States. Researchers found a 74 percent increase in rape or attempted rape at these schools.

“This report uncovers failures at every level to protect students from sexual abuse in public K–12 schools,” said Bob Eitel, DFI president and co-founder, in a statement. “What’s most shocking is the lengths to which teacher union leaders will go to protect their members suspected of abusing students and the number of states that have ignored their ESEA ‘pass the trash’ obligations.”

Local education agencies and unions use collective bargaining and nondisclosure agreements to hide the records of abusive employees, the report says, adding that union leaders use their influence in many state legislatures to lobby against measures that would hold perpetrators accountable.

Abuse Reports Increased

For the 2015–16 school year, the U.S. Department of Education’s Civil Rights Data Collection reported 9,649 incidents of sexual violence. In the 2017–18 school year, there were 13,799 incidents, a 43 percent increase in cases reported.

From 2010 to 2019, complaints to the U.S. Department of Education’s Office for Civil Rights about sexual assault in K–12 schools more than tripled, according to the report.

Despite the fact that schools are mandated by law to investigate sexual abuse and to notify parents or document the investigation in the employee’s personnel file, very few follow through to hold the teacher accountable, which leads to passing the teacher to another school, the report said.

The practice is dubbed “passing the trash.”

The report aims to do three things: 1) assess sexual abuse policies at the state and federal level that allow for “passing the trash” in K–12 schools, with a focus on three key players—public school administrators and school district officials, teachers unions, and federal officials; 2) look at how the current system leads to a breakdown in accountability; and 3) propose strategies to overcome bureaucratic inaction and union obstruction at the state and federal levels.

There are attitudes and silent agreements that allow for the “passing of the trash,” or not taking action against perpetrators of sexual abuse at all.

According to the DFI report, incomplete background checks, the failure to share information between school districts, and collective bargaining agreements are all key contributors to the problem.

The DFI report cites the Government Accountability Office’s (GAO) 2010 report on sexual abuse (pdf), which further illuminates why administrators resort to “passing the trash.”

According to the DFI report, one public school administrator told GAO that “it could cost up to $100,000 to fire a teacher, even with ‘a slam dunk case.’” Other officials told GAO that “depending on the terms of a separation agreement, school administrators may not be able to provide anything less than a positive recommendation for an employee for fear of a potential lawsuit.”

In spite of mandatory reporting laws that require school employees in certain capacities to report any suspicion of abuse, research has shown that teachers and other school employees report their colleagues to law enforcement or child welfare agencies in only about 5 percent of sexual abuse cases, the report said.

Past Efforts to Stop Abuse

Some of the more recent efforts by the federal government to stop the practice of “passing the trash” included former U.S. Education Secretary Betsy DeVos publishing Title IX regulations prohibiting sexual harassment, including sexual assault.

Prior to that in 2015, Sens. Pat Toomey (R-Pa.) and Joe Manchin (D-W.Va.) introduced an amendment to Section 8546 of the Elementary and Secondary Education Act (ESEA), requiring states to pass laws prohibiting school employees from “passing the trash.”

The Senate voted unanimously in favor of the amendment, making it law.

Despite these laws, few states and educational agencies complied with them for a variety of reasons, the main one being collective bargaining agreements. According to Toomey and Manchin, “three-quarters of all states have not yet enacted legislation while continuing to receive federal funding.”

In a letter to current U.S. Education Secretary Miguel Cardona, Toomey and Manchin asked the department to provide answers regarding states’ inaction to protect students (pdf).

“This violation of the law must be addressed by the Department of Education immediately,” Toomey and Manchin said in the 2022 letter. “We must follow up with concrete action that starts with shielding students from predators in the classroom. … We urge the Department of Education to take immediate steps to ensure that all policies to protect children are enforced, including the ESEA’s prohibition on Aiding and Abetting Sexual Assault.”

The DFI report also asserts that the Department of Education has neglected to hold states accountable on this issue as part of its Title IX enforcement power.

“The absence of this information is a concern; it appears that, perhaps under pressure from teacher unions, state education agencies, and school districts, the Biden administration has silently delayed or even killed [the Department of Education’s] Title IX initiative announced in 2020,” states the report.

Reforms

The DFI report suggests reforms that could stop the cycle of “passing the trash” and finally hold perpetrators accountable and help stop sexual abuse in public schools. The reforms outlined would have to be carried out at the state and federal level.

Beginning with state legislatures, these state bodies need to create laws prohibiting secret agreements between school districts and public employees that prevent future supervisors from getting full records of the employee’s sexual misconduct. The prohibition would apply to provisions in collective bargaining agreements.

In addition, legislatures must create provisions that penalize school districts that knowingly assist perpetrators to find new jobs and also penalize those district employees that fail to report sexual misconduct by any other employee.

Beyond the state bodies, the Department of Education can reinstate the Trump administration’s Title IX policy, require that states comply with ESEA’s requirements, and withhold federal funding from states that do not follow the laws, the DFI suggests.

Congress can also do more to stop abusers moving from school to school.

The federal government should begin by passing a law that requires school districts to compile a report and inform teachers, parents, and students about sexual assaults each year, DFI says.

Congress should also “amend the ESEA to clarify penalties to be imposed upon states that fail to prohibit school personnel from aiding and abetting sex abusers in obtaining new employment, specifying a certain percentage of K–12 funding to be withheld for noncompliance.”