School Background Checks
OVERVIEW
In Illinois, all public school districts must conduct criminal background checks of all certified and non-certified applicants for employment pursuant to 105 ILCS 5/10-21.9 and 105 ILCS 5/34-18.5[1] of the Illinois School Code. This background check requirement also applies to Illinois private schools in certain circumstances.
Prior to 2004, Illinois required only name-based criminal background checks. On August 12, 2004 P.A. 93-909 amended Sections 10-21.9 and 34-18.5 to require school districts to perform a fingerprint-based criminal history records check.
Any applicant for employment in a school district (except for school bus driver applicants) must permit the school district to submit a fingerprint based criminal history records check. The criminal history records check must be initiated prior to employment, but a school district may permit an individual to be hired and begin employment pending the outcome of the criminal history records check. “Initiated” means that the applicant’s fingerprint image has been transmitted via LiveScan to the Illinois State Police and FBI.
The administrative rules detailing how school districts must initiate the background checks and the logistics of the background checks may be found at 20 Ill. Admin. Code 1270 et. seq. PDF(Entitled Criminal History Background Investigations).
Individuals hired prior to August 12, 2004 are not required to submit to the fingerprint-based criminal history records check.
A copy of any record of conviction obtained from the Illinois State Police shall be provided to the applicant.
The background check provision of the School Code is very important The statutes specify that a “board of education” or “school board” shall not “knowingly employ a person for whom a criminal history records check and Statewide Sex Offender Database check has not been initiated.” While the statute does not prescribe specific penalties for a failure to conduct the required background check, one Illinois Appellate Court has held that a school district was not entitled to immunity under the Governmental Employees Tort Immunity Act when they failed to conduct a background check on an employee who sexually assaulted a student. Mueller v. Community Consolidated School District 54, 287 Ill.App.3d 337 (1st Dist. 1997).
In Mueller, a junior high student who served as the manager of the school wrestling team was sexually assaulted by the wresting team coach at the coach’s home. It was later revealed the school district had never conducted a background check for the coach. The student’s parent filed a civil complaint against both the coach and the school district.
The Appellate Court held that the parent satisfied the first two elements of a their negligent hiring claim against the school district, by showing that the school district “was required by law and otherwise had a duty to exercise reasonable care and caution in the hiring and investigation of [the coach] [and] should have known at the time of hiring that he had a criminal background exhibiting moral turpitude which made him unfit for a position dealing with minors.” In addition, the Mueller Court also held that the school district’s failure to comply with the background check requirement “vitiates” any immunity it might otherwise have enjoyed.
STATUTORY REQUIREMENTS
I. Enumerated Offenses Revealed in Background Checks:
Pursuant to the statutory language of 105 ILCS 5/10-21.9 and 105 ILCS 5/34-18.5, the fingerprint-based criminal history records check is conducted to determine whether the applicant has ever been convicted of any of the enumerated criminal or drug offenses in subsection (c) of the Act, or if the applicant has been convicted, within 7 years of the application for employment, of any felony under the State of Illinois laws (or in another state any offense committed or attempted that would qualify as a felony in that state).
1. Criminal and Drug Offenses in Section (c):
1. Sex Offenses
1) Indecent solicitation of a child (720 ILCS 5/11-6)
2) Public indecency (720 ILCS 5/11-9)
3) Sexual exploitation of a child (720 ILCS 5/11-9.1)
4) Custodial sexual misconduct (720 ILCS 5/11-9.2)
5) Presence within school zone by child sex offenders prohibited (720 ILCS 5/11-9.3)
6) Approaching, contacting, residing, or communicating with a child within certain places by child sex offenders prohibited (720 ILCS 5/11-9.4)
7) Sexual misconduct with a person with a disability (720 ILCS 5/11-9.5)
8) Prostitution (720 ILCS 5/11-14)
9) Solicitation of a sexual act (720 ILCS 5/11-14.1)
10) First offender; felony prostitution (720 ILCS 5/11-14.2)
11) Soliciting for a prostitute (720 ILCS 5/11-15)
12) Soliciting for a juvenile prostitute (720 ILCS 5/11-15.1)
13) Pandering (720 ILCS 5/11-16)
14) Keeping a place of prostitution (720 ILCS 5/11-17)
15) Keeping a place of juvenile prostitution (720 ILCS 5/11-17.1)
16) Patronizing a prostitute (720 ILCS 5/11-18)
17) Patronizing a juvenile prostitute (720 ILCS 5/11-18.1)
18) Pimping (720 ILCS 5/11-19)
19) Juvenile Pimping and aggravated juvenile pimping (720 ILCS 5/11-19.1)
20) Exploitation of a child (720 ILCS 5/11-19.2)
21) Obscenity (720 ILCS 5/11-20)
22) Child pornography (720 ILCS 5/11-20.1)
23) Duty to report child pornography (720 ILCS 5/11-20.2)
24) Aggravated child pornography (720 ILCS 5/11-20.3)
25) Harmful material (720 ILCS 5/11-21)
26) Posting of identifying or graphic information on a pornographic Internet site or possessing graphic information with pornographic material (720 ILCS 5/11-23 – Class 3 Felonies only)
27) Child photography by a sex offender (720 ILCS 5/11-24)
28) Grooming (720 ILCS 5/11-25)
29) Traveling to meet a minor (720 ILCS 5/11-26)
30) Drug induced infliction of aggravated battery to a child athlete (720 ILCS 5/12-4.9)
31) Criminal Sexual Assault (720 ILCS 5/12-13)
32) Aggravated Criminal Sexual Assault (720 ILCS 5/12-14)
33) Predatory criminal sexual assault of a child (720 ILCS 5/12-14.1)
34) Criminal sexual abuse (720 ILCS 5/12-15)
35) Aggravated criminal sexual abuse (720 ILCS 5/12-16)
36) Ritual mutilation (720 ILCS 5/12-32)
37) Ritualized abuse of a child (720 ILCS 5/12-33)
2. Drug Offenses
Cannabis Control Act – 720 ILCS 550/1 et. seq.[2]
1) Unlawful possession of cannabis[3], more than 10 but less than 30 grams (720 ILCS 550/4(c))
2) Unlawful possession of cannabis, more than 30 but less than 500 grams (720 ILCS 550/4(d))
3) Unlawful possession of cannabis, more than 500 but less than 2000 grams (720 ILCS 550/4(e))
4) Unlawful possession of cannabis, more than 2000 but less than 5000 grams (720 ILCS 550/4(f))
5) Unlawful possession of cannabis, more than 5000 grams (720 ILCS 550/4(g))
6) Manufacture or delivery of cannabis[4] more than 2.5 but less than 10 grams (720 ILCS 550/5(b))
7) Manufacture or delivery of cannabis more than 10 but less than 30 grams (720 ILCS 550/5(c))
8) Manufacture or delivery of cannabis more than 30 but less than 500 grams (720 ILCS 550/5(d))
9) Manufacture or delivery of cannabis more than 500 but less than 2000 grams (720 ILCS 550/5(e))
10) Manufacture or delivery of cannabis more than 2000 but less than 5000 grams (720 ILCS 550/5(f))
11) Manufacture or delivery of cannabis more than 5000 grams (720 ILCS 550/5(g))
12) Cannabis trafficking (720 ILCS 550/5.1)
13) Delivery of cannabis on school grounds (720 ILCS 550/5.2)
Illinois Controlled Substances Act – 720 ILCS 570/1 et. seq.
Any offense defined in the Illinois Controlled Substances Act
Methamphetamine Control and Community Protection Act – 720 ILCS 646/1 et. seq.
Any offense defined in the Methamphetamine Control and Community Protection Act
II. Prohibitions on Hiring:
Both 105 ILCS 5/10-21.9 (c) and 105 ILCS 5/34-18.5(c) specify:
“No school board shall knowingly employ a person who has been convicted of any offense that would subject him/her to certification suspension or revocation pursuant to 105 ILCS 5/21-23a.” (emphasis added)
Therefore, when determining whether to hire an applicant, a school district must also look to 105 ILCS 5/21-23a. That provision regarding teacher certification provides:
105 ILCS 5/21-23a – Conviction of certain offenses as grounds for revocation of certificate
Whenever the holder of any certificate issued pursuant to Article 21 of the Illinois School Code (entitled Certification of Teachers) has been convicted of any sex offense or narcotics offense as defined in this Section, the State Superintendent of Education shall forthwith suspend the certificate. 21-23a(a)
Whenever the holder of any certificate issued pursuant to Article 21 of the Illinois School Code (entitled Certification of Teachers) has been convicted of first degree murder, attempted first degree murder, conspiracy to commit first degree murder, attempted conspiracy to commit first degree murder, a Class X felony, or another state’s equivalent of any of the aforementioned crimes, the State Superintendent of Education shall forthwith suspend the certificate. 21-23a(b). (Emphasis added)
Thus, a school district may not hire an individual who:
- Has been convicted of any sex offense defined in the statute;
- Has been convicted of any narcotics offense defined in the statute;
- Has been convicted of first degree murder, attempted first degree murder
In sum, while fingerprint-based criminal history records checks are authorized under Both 105 ILCS 5/10-21.9 (c) and 105 ILCS 5/34-18.5(c) to reveal all felony convictions within 7 years of the date of the application, the school code does not completely prohibit employment of certified persons with a felony conviction of less than 7 years, except in the enumerated sex offenses, narcotics, and the “murder” offenses.
Therefore, there is some flexibility for school districts in hiring, should a person’s background check reveal a general felony conviction of less than 7 years. However, when assessing an applicant with a felony conviction that does not fall within the enumerated prohibition, school officials need to seriously consider the individual prior to hiring and assess the situation, as other legal liability could attach in the event that employee commits a future crime.
In Doe v. Bd. Of Educ. of the Comm. Unit Sch. Dist. No. 5, 680 F.Supp.2d 957 (C.D.Ill. 2010), parents of elementary school students brought an action against a teacher, school district, and administrators, alleging sexual harassment, sexual discrimination, and sexual abuse. Two of the parent’s claims were based on the fact that the background check conducted for the teacher at issue had revealed a conviction for resisting arrest, as well as several other charges that did not lead to a conviction.
The parents claimed the District “willfully and wantonly” breached its duty of care by hiring the teacher in light of the criminal reports and some mischaracterizations made by the teacher, as it proved the teacher’s lack of truth and eventual sexual abuse of his students. The court held that parents did state a cause of action based on these theories, although the school district was ultimately immune from the claims based on governmental immunity.
CERTIFIED VS. NON-CERTIFIED STAFF
As noted above, the sections of the Illinois school code regarding background checks,105 ILCS 5/10-21.9 and 105 ILCS 5/34-18.5, should be read with the section regarding conviction of certain offenses as grounds for revocation of certificate, at 105 ILCS 5/21-23a.
While the language of 105 ILCS 5/10-21.9 and 105 ILCS 5/34-18.5 requires that background checks be conducted for all certified and non-certified staff, 105 ILCS 5/21-23a only applies to certified staff.
Thus, both 105 ILCS 5/10-21.9 (c) and 105 ILCS 5/34-18.5(c) prohibit the knowing employment of a person convicted of an offense that would result in a revocation of a certificate; which presumably means only certified staff, and pursuant to 5/21-23a only applies to narcotics and sex offenses (no mention of felony offenses, except those related to murder and attempted murder in 5/21-23a (b)).
However, even given these apparent loopholes in the statute, it would be prudent to refrain from hiring non-certified staff whose background checks have revealed such offenses.
PRIVATE SCHOOLS
Although both 105 ILCS 5/10-21.9 (c) and 105 ILCS 5/34-18.5(c) apply to public school districts in Illinois, the Illinois State Board of Education encourages all employers of personnel working with children to conduct background checks of potential employees. Illinois recently made the provisions of the Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-248) accessible to private schools in Illinois. This Act allows schools not authorized under 105 ILCS 5/10-21.9 access to the FBI repository for national background checks. It also allows 14-7.02 (private special education) facilities to conduct fingerprint based background checks on employees as required by 105 ILCS 5/10-21.9. In the past, these 14-7.02 non-public facilities have been unable to process the background information in the same manner as public schools, even though they were required to perform the checks under 23 Ill.Admin.Code 401.260 (a)(4). This Act now closes that loophole.
In addition, some categories of private schools are also required by law to conduct background checks of potential employees:
Non-Public, Special Education Schools Approved Pursuant to Section 14-7.02 of the Illinois School Code
105 ILCS 14-7.02 non-public special education schools are subject to background check requirements pursuant to the rules at 23 Il.Admin.Code 401. Specifically, at 401.260(a), which reads in pertinent part:
Section 401.260 Staff Records
a) A separate, current record shall be maintained for each staff member employed either full-time or part-time who provides direct services or who is directly involved in the development and implementation of instructional and related services for students enrolled under Section 14-7.02 of the School Code. All staff files shall be available on site for inspection by representatives of the State Board of Education and placing public school districts and shall include the following:
***
4) Copies of:
A) the results of fingerprint-based criminal history records checks performed pursuant to the Uniform Conviction Information Act [20 ILCS 2635] or, for afacility located in another state, pursuant to that state’s uniform conviction information act, and pursuant to the Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-240); and
B) the results of checks of the Statewide Sex Offender Database maintained in accordance with Section 115 of the Sex Offender Community Notification Law [730 ILCS 152/115] or, for a facility located in another state, checks of that state’s sex offender database.
5) Records of the transmission of all criminal background investigation reports to each public school district currently contracting with the provider.
Thus, this section requires that 7.02 schools conduct background checks for all staff members “employed either full-time or part-time who provides direct services or who is directly involved in the development of instructional and related services for students.” There appears to be no distinction between certified and non-certified staff under this language.
Also note that 401.260(a)(5) requires the private schools to transmit the employee background check results to the public districts that fund students at the facility.
Private Schools Holding ISBE Non-Public School Recognition Status
In addition to Section 14-7.02 non-public, special education schools, many other non-special education, private schools are subject to background checks pursuant to P.A. 95-351, which amended Section 2-3.25o of the Illinois School Code to require schools that have or seek ISBE “Non-Public School Recognition Status” to conduct background checks on certified and non-certified staff.
On August 23, 2007, Illinois passed P.A. 95-351, which amends 105 ILCS 5/2-3.25o, to create subsection (c-5) requiring non-public elementary and secondary schools seeking registration and/or recognition from ISBE after July 1, 2007 to comply with criminal background records information checks for employees and contractors with public schools. Such schools must follow the same standards as public schools with regard to background checks. Non-public schools who fail to comply will be prohibited from obtaining recognition status with ISBE.
Prior to this Act, most non-public schools were not required to perform background checks under state or federal law.
Miscellaneous
In addition, any non-public school subject to licensing by DCFS under the Child Care Act of 1969, 225 ILCS 10/4.1, is required to perform background checks on potential employees. The DCFS rules at 89 Ill. Admin. Code 385 detail this requirement.
The Chicago Archdiocese also maintains internal policies which require criminal background checks for all of its school personnel.
Private School Liability
As noted above, Mueller v. Community Consolidated School District 54, held that a school district could not enjoy governmental immunity under the Tort Immunity Act when failing to conduct a background check of an employee who later sexually abused a student. In Doe v. Bd. Of Educ. of the Comm. Unit Sch. Dist. No. 5, the school district was able to use the immunity protections because they had conducted a criminal background check, even though that check revealed a conviction.
Public school immunity in Illinois is predicated on two statutes, The Local Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et.seq. (“Tort Immunity Act”), and Sections 24-24 and 34-84a of the School Code, 105 ILCS 5/24-24, 34-84a.
The Tort Immunity Act provides an extensive list of immunities to local governmental units, including school districts. Section 3-108(a) immunizes a local public entity for an injury caused by a failure to supervise an activity on, or a failure to supervise the use of any public property. This section immunizes local public entities and employees from liability based on both ordinary negligence and “willful and wanton” misconduct.
Sections 24-24 and 34-84a of the School Code immunize teachers and certain other educational employees from liability for injuries caused by their negligent supervision of school activities. To recover for such an injury, a plaintiff must plead and prove that the teacher committed willful and wanton misconduct by such supervision.
Sections 24-24 and 34-84a of the School Code applies equally to public and private schools. In contrast, the Tort Immunity Act does not apply to private schools, but only to public schools. (see, Henrich v. Libertyville H.S., 186 Ill.2d 381 (Ill. 1999). “By the plain language of of section 3-108(a) of the Tort Immunity Act, the legislature has chosen to grant public schools teachers and public school districts greater immUnity than private school teachers and private schools.”)
Therefore, since private schools can only claim immunity from one source in Illinois, and not two, they should be particularly vigilant in obtaining background checks for potential employees and when assessing the results of returned background check information.
[1]105 ILCS 5/10-21.9 applies to School Boards, 105 ILCS 5/34-18.5 applies to cities with over 500,000 inhabitants with a Board of Education.
[2] Please note: If a teacher is convicted for cannabis, but is placed on probation under 720 ILCS 550/10 (first offender probation), then that conviction is excluded as long as the teacher has successfully completed his/her probation requirements.
[3] Please note: A conviction for a Class C amount of cannabis (not more than 2.5 grams) is excluded. A conviction for a Class B amount of cannabis (more than 2.5 grams but less than 10 grams) is excluded.
[4] Please note: A conviction for Class B delivery of not more than 2.5 grams of cannabis is excluded.