WASHINGTON — It’s been seven years since laws passed to forbid school districts from “passing the trash” — allowing educators accused of sexual misconduct to quietly resign rather than face discipline for abusing students.

What has changed?

That’s what U.S. Sens. Pat Toomey, R-Pa., and Joe Manchin, D-W.Va., are asking Secretary of Education Miguel Cardona. The senators, who originally introduced the legislation, sent a letter to Cardona Thursday regarding states’ failure to institute policies that protect students from educators who engage in sexual misconduct.

In February, the senators wrote to Cardona requesting an update regarding state compliance. In early June, the Department, after several delays, released a report on the matter. The findings were troublesome, showing that not all states have taken enough steps, or the right steps, to protect students.

Thursday’s letter to Cardona read, in part, “Our legislation (Section 8546 of the Elementary and Secondary Education Act (ESEA)) sought to end the horrific practice, known as ‘passing the trash’ or ‘aiding and abetting sexual abuse.’ Yet, seven years after its enactment, the patchwork of state laws identified in the Report show that many states have failed to sufficiently prohibit the practices that contributed to a student’s death, such as the false letters of recommendation that allowed a school employee to transfer schools with a ‘clean’ record.”

The tragedy to which the letter refers was the rape and murder of a 12-year-old student by his vice principal in West Virginia. The perpetrator had previously sexually assaulted a different student while employed at a school in Pennsylvania. Instead of being fired and prosecuted, he was permitted to resign and transfer to a school in West Virginia.

The senators’ letter continued, “The findings in the Report underscore the need for stronger enforcement to ensure that states comply with this important provision of law. Further, we are concerned that the Department has yet to put into place a concrete timeline by which states must come into compliance.”

Under Section 8546 of the Elementary and Secondary Education Act (ESEA), the Department of Education must require all states receiving federal education funding to enact policies, laws, or regulations to stop the practice of “passing the trash.”

The senators urged Cardona to put the report’s recommendations into practice to ensure that “all policies in place to protect children are enforced, especially the ESEA’s prohibition on aiding and abetting sexual abuse. Specifically, we urge the Department to issue formal guidance to states to ensure states are fully aware of how they can comply with their obligations under the law.”

Manchin and Toomey flagged several alarming pieces of the Department of Education’s report, including:

At minimum, 32 states do not have policies in place to meet the baseline requirements of Section 8546.

Background check laws in existence have limitations including that “applicants with a record of sexual misconduct in other states might omit or falsify their prior employment history on a job application” without facing legal ramifications.

Only 19 State Educational Agencies (SEAs) believed that existing state laws and policies in their respective states were sufficient to meet the requirements of Section 8546.

Only 18 SEAs “monitor district compliance with state laws or policies” to prohibit the practice of aiding and abetting sexual misconduct.

Eight SEAs reported that they do not document district complaints and/or incidents of sexual misconduct and seven SEAs did not know whether their districts documented complaints and/or incidents of sexual misconduct.

Only nine SEAs had laws that address all four of the significant factors identified by the Report as prohibiting the aiding and abetting of sexual assault.

Only 20 SEAs have laws prohibiting information suppression, including prohibiting termination agreements or misleading letters of recommendation.

The report, which does not give specific information by state, is available online at /bradfordera/news/wp-content/uploads/sites/4/2022/09/Study-of-State-Policies-to-Prohibit-Aiding-and-Abetting-Sexual-Misconduct-in-Schools.c5924cab930fef65f0b81d84c5f2d926.pdf