Sexual Misconduct in K-12 Public Schools

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What Policy Professionals, Parents, and Lawmakers Need to Know (And What They Can Do)

Sexual misconduct has become front and center of many conversations about child-rearing, including social media, the popular but controversial film, Sound of Freedom, and K-12 education policies. But, the statistics around sexual misconduct in K-12 schools call for a serious look at what can be done to stop the problem.

Sadly, sexual misconduct in K-12 schools has been an ongoing issue for decades. While some government officials and some states have enacted aggressive policies to expose the issue and stop it when it happens, others have done very little to address the problem.

Unfortunately, teachers unions have proven to be some of the biggest opponents of common-sense policies designed to curb sexual misconduct in schools. This brief case study outlines the issues surrounding sexual misconduct in K-12 schools, identifies the interest groups most responsible for the current state of affairs, and highlights specific policies that state and local governments can enact to fix it.

The problem: Societies have worked to protect children from sexual exploitation by adults for generations on end, but the efforts took on new urgency in the K-12 context beginning in the 1980s etc. Despite this focus, data shows that the issue of sexual misconduct in K-12 schools persists today and has increased.

A 2019 report from the United State Department of Education Office for Civil Rights shows that between 2010 and 2019 the number of complaints of sexual violence filed with the U.S. Department of Education’s Office for Civil Rights (OCR) in K-12 schools increased by 208 percent. Similarly, from 2015-2018, the incidents increased drastically.  

The Civil Rights Data Collection (CRDC) reports the following from 2015-2018:

YearIncidents of Sexual ViolenceIncidents of Rape or Attempted Rape
2015-20169,649394
2017-201814,938786

However sobering, the data is not terribly useful to policymakers seeking to stop sexual misconduct in schools, because the data released by the Department of Education’s Office of Civil Rights does not note whether the alleged abuser is a student, teacher, or administrator. A 2014 Government Accountability Office (GAO) report states, “[a]lthough several federal agencies collect related data, none collect comprehensive data that would quantify the prevalence of sexual abuse by school personnel.” Thus, it is difficult (if not nearly impossible) to know the percentage of sexual misconduct that is perpetrated  by school personnel. All sexual misconduct ought to be taken seriously, but it is critical that school officials, policymakers, and parents know the degree to which adults may be abusing children in schools.

The Department of Education, Department of Health and Human Services (HHS), and Department of Justice (DOJ) also collected state-reported data about sexual misconduct in schools. But once again, none of their data shows exactly how much of the abuse is committed by school personnel.

Despite the lack of clear reporting on sexual misconduct by adults against children in schools, some statistics are available at both the state and national levels. And they are troubling:

  • Nationwide: A 2004 Department of Education report shows, “the physical sexual abuse of students in schools is likely more than 100 times the abuse by priests.”
  • Colorado: A 2018 Denver Post article reports that a 2015 Colorado Department of Human Services survey showed that 70% of mandatory reporters did not know that they were mandatory reporters. And, of those who did know that they were mandatory reporters, 30%, did not know the proper steps to report child abuse or neglect.

If There is Some Data, Why Do Educators, Administrators, and Officials Continue Overlooking the Problem?

Sexual misconduct in K-12 schools often goes unreported. Most school districts do not have to report allegations unless they know the allegations are true. They do, however, have to report substantiated allegations. Instead, school districts will overlook sexual misconduct allegations, sometimes encouraging teachers or administrators to retire or move to a different district quietly.

As such, teachers who have been accused of inappropriate sexual activity with a student are passed to other schools, a practice commonly referred to as, “passing the trash.”

EnoughAbuse.org describes this as “allowing or even encouraging of school employees engaged in sexual misconduct to resign in lieu of an internal investigation or outside legal action. Some schools have provided personal incentives to encourage staff engaged in sexual misconduct or abuse to resign or retire. Confidential separation agreements that include financial benefits, promises of excellent future letters of reference, and/or the option to surrender one’s teaching certificate in lieu of legal action, are some of the benefits negotiated as part of this practice.”

Put simply, often times one of two things will happen. The first is when a teacher is accused of sexual misconduct, sometimes school districts will offer them financial incentives to “voluntary resign” from their role, after which there is a confidential separation agreement. Similar to private companies, where sometimes when a scandal occurs, employees “Step down” with financial incentives, sealed records, and promises of positive future references. Teachers are no different.

The second scenario is far more damaging. In some cases where there are abuse allegations, the teachers are encouraged to “look for a new job.” Since there were only allegations, the record is sealed, and the school district provides a positive reference to a potential employer and teachers are “passed” from school district to school district.

According to the Defense of Freedom Institute (DFI) report, Catching the Trash, a public school employee can abuse multiple children before getting fired or facing legal consequences,  “In its 2010 investigation of 15 [sexual misconduct] cases…the U.S. Government Accountability Office (GAO) determined that four of the cases involved school officials allowing an employee to resign in order to avoid disciplinary action, leaving the employees with unblemished records and free to find new victims in another school district. In three of those four cases, the officials provided a positive recommendation or reference letter for the former employee.”

To summarize, a teacher can be accused of sexual misconduct, and it is not uncommon for school officials to permit the employee to resign, which leaves the employee with an employment record free of sexual misconduct allegations. And, therefore the school has no record of the abuse or allegations.

The issue of sexual misconduct oversight and reporting spans federal agencies, state legislatures, school districts, and teachers’ unions, and as such, each of these groups bears some responsibility for the all-too-prevalent issue of sexual misconduct in schools. This case study breaks down the role and responsibilities within each of these groups for stopping sexual misconduct in K-12 schools.

Federal Agencies:

In 2018, Secretary DeVos used the power of the Department of Education to hold states accountable for adhering to the ESSA provision and engage in steps that would quell the issue of “passing the trash.” She issued a letter to governors stating, “[f]ailure to meet [the law’s] requirements may result in the Department taking appropriate enforcement action.” But, nevertheless, few states actually passed a law requiring more disclosure about sexual misconduct in schools.  Below is a breakdown of the number of states with specific laws on the books to prevent sexual misconduct in schools.

As of October 2022, …

  • 20 states have laws to “explicitly prohibit suppressing information regarding school employee sexual misconduct.”
  • Of those 20 states, 11“prohibit current or former employers from expunging information regarding allegations or other findings of sexual misconduct from employee records.”
  • 12 states “prohibit the suppression of this type of information through termination/ resignation agreements, severance agreements (9 states), collective bargaining agreements (9 states), or confidentiality or nondisclosure agreements (6 states).”
  • Three states prohibit “[s]anitized letters of recommendation for jobs involving children or students” for employees who engaged or allegedly engaged in sexual misconduct.”

This means less than 50% of states have specific laws on the books to help prevent sexual misconduct in schools. Fortunately, efforts to change this did not stop in the Trump Administration.

In 2022, Senators Toomey and Manchin, a Republican and Democrat, sent a letter to Education Miguel Cardona asking the Department of Education to enforce the ESSA provision. The letter stated, “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.”  Unfortunately, since then, the Department of Education has done little to protect children from sexual misconduct, but there is plenty of responsibility to go around.

First and foremost, responsibility lies with the abuser, but government official, state legislators, and the teacher’s unions bear the responsibility for not enacting, or in the case of the teacher unions, actively opposing policies that would, at very least, expose the issue of sexual misconduct and foster accountability.

What Can Be Done and Who Is Responsible?

States Legislatures Can:

As the ESSA makes clear, each state has the power to pass laws that prohibit hiding information about employee sexual misconduct.

  • Stop “Passing the Trash”

As of May 2023, 14 state and the District of Columbia have passed laws that prohibit schools from helping teachers who have engaged in sexual misconduct to secure positions at other schools and hold school districts accountability for being transparent when it comes to reporting sexual misconduct data.

These states are:

Washington (2004), Oregon (2010), Missouri (2011), Pennsylvania (2014), Connecticut (2016), Nevada (2017), Wisconsin (2017), New Jersey (2018), Washington D.C. (2018), Vermont (2018), Maryland (2019), Colorado (2021), Indiana (2023) and Iowa (2023). Legislation is pending in Massachusetts (2023).

  • Extend Statute of Limitations for Child Sexual Abuse Cases

Additionally, state legislators have passed legislation that extends the statute of limitations for abuse cases, and many states have adopted measures for incidents of child sexual abuse.

This year (2023) Maryland passed a law that lifts the statute of limitations on civil lawsuits in child sexual abuse cases.

A more complete analysis of state-by-state statute of limitations may be found on Child USA’s tracker.

  • Strengthen Age of Consent Laws

Many states with a legal consent age of 16 have language in their laws that prohibits adults in positions of authority (such as teachers, camp counselors, coaches) from engaging in any sexual relationship with children in their custodial care. However, in some instances, this gets pushback from none other than teachers unions.

The Federal Government Can:

  • Enforce “Passing the Trash” Provision in ESSA (Every Student Succeeds Acts)

There is already a Federal law, the Every Student Succeeds Act (ESSA), with a provision that states educational agencies and local school districts receiving federal funding must have laws, regulations and policies “that prohibit 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.”   However, little has been done to enforce this provision. The Department of Education should prioritize identifying states that fail to comply with this part of ESSA.  The DOE can do this through a variety of means, including…

  • Offering a state guidance and education as it pertains to the provision
  • Publicizing a state’s non-compliance, or possibly using the prospect of legal action
  • Loss of federal funds as leverage to enforce compliance

Since ESSA was passed, aside from former Education Secretary Betsey DeVos, little has been done to enforce the provision.

Teachers Unions Can:

For years, teachers’ union have worked against legislation that would require school districts disclose abuse allegations to potential employers of teachers and hold teachers accountable when they engaged in sexual misconduct.  

In 2012, the Wall Street Journal reported that under New York law, allegations of sexual misconduct are first investigated, and then the case goes before an arbitrator.  According to the article, “The local teachers union and school district together choose the arbitrators, who in turn are paid up to $1,400 per day.” As such, the arbitrator may have a bias to appease the union. 

Another example is in 2018 a Rhode Island state representative tried to get a bill passed that would criminalize sexual relations between any adult with custodial care and those in their care. According to Rep. Marszalkowski, the ACLU opposed bill saying that the proposed legislation was too broad. But it didn’t stop with the ACLU. According to The Newport Buzz two Rhode Island teacher unions opposed the bill, “Members of the NEARI and the RIUFT took to the state house to express the opposition against a bill that would make it illegal for Rhode Island teachers to have sex with their 16- and 17-year-old students.” Thankfully, in 2022 Rhode Island passed legislation making it illegal for teachers to have sexual relationships with children. But the fact remains that the teachers’ unions opposed it in 2018, and this is nothing new.

The primary problem is due to collective bargaining.

Quickly, collective bargaining is when labor unions establish rules and conditions around their employment (hours worked, working conditions, holiday pay, etc.). In the case of teachers, as with many public employees, this poses a problem because state workers already enjoy a number of privileges primarily job security. Unfortunately for America’s schoolchildren, the benefits afforded to teachers through collective bargaining create the conditions for hiding sexual misconduct.

A City Journal article, Red Flags in the Classroom states, “Collective bargaining agreements negotiated between teachers’ unions and school districts are a key contributor to the problem. They “often allow for scrubbing of personnel files,” observes Zimmerman, so that no record of abuse is left once an offender leaves the system. State legislators—many of whom depend on teachers’ union support—are notoriously lax in this area.” In some states, when a teacher accused of sexual misconduct leaves a school, his or her personnel file is scrubbed thereby removing all evidence of wrongdoing and potentially opening up the possibility of causing harm to another student. And, in many cases, this happens.

In the 2010 Government Accountability (GAO) study referenced earlier 11 of the 15 cases involved offenders who had previously harmed children. In short, collective bargaining and withholding sexual misconduct data “benefits one group and one group only—the teachers’ unions.”

Inaction from state legislators and pushback from teachers’ unions has profound consequences for America’s children. In our cultural moment when children are exposed to adult content on social media, and schools hide gender and sexuality content from parents, it is more important now than ever that people of all beliefs and ideologies address the reality of sexual misconduct cover ups in America’s K-12 schools.

Last year, Biden’s political appointees in OCR proposed removing from the CRDC questions relating to sexual abuse of students by employees until a public outcry forced the agency to back down and keep the questions.

  • Take the Lead on Stopping Sexual Misconduct In K-12 Schools

In our current political and cultural environment where teachers unions seem to be against parents and children, they have the opportunity to be leaders in stopping the sexual abuse of minor children. They can get informed about the laws in your state that protect minors from sexual assault by people in positions of authority.