ISBE Releases New Resource Guide and FAQ Regarding Faith’s Law
As we previously reported, under new School Code amendments made by Faith’s Law aimed to address sexual abuse prevention and response in schools, school districts, charter and non-public schools are required to implement new training, policy and procedural requirements, with all of these being in full effect as of July 1, 2023. To assist with implementing the new requirements of Faith’s Law, this week ISBE released a new Resource Guide and FAQ.
Sexual Abuse Response and Prevention Resource Guide
Faith’s Law requires ISBE to develop a resource guide regarding sexual abuse response and prevention resources available in their communities. This week, ISBE released its Resource Guide, which includes contact information and a list of services provided by or available through Children’s Advocacy Centers and Sexual Assault Centers in Illinois. In addition, the Guide provides contact information and lists available services offered by organizations that provide mental health evaluations and services, medical evaluation and treatment, and legal assistance and advocacy to victims and families of victims of child sexual abuse.
At the beginning of each school year, school districts, charter schools, and non-public schools are required to notify parents and guardians of the availability of ISBE’s Resource Guide. Schools are also required to provide a copy of the Resource Guide at a parent or guardian’s request and may, but are not required to, make the Resource Guide available on the school’s or district’s website.
Faith’s Law Guidance and FAQ
ISBE also released an FAQ document to assist schools with practical implementation concerns related to Faith’s Law, including answers related to the definition of sexual misconduct, the employee code of professional conduct policy, notice requirements, and employment history review requirements. Most of the answers reiterate the applicable School Code language, however ISBE offers further analysis on certain aspects, particularly with respect to employment history review requirements. Below, we highlight some of the main takeaways that serve as reminders of the School Code requirements or identify areas on which ISBE provides further analysis.
- “Sexual Misconduct”, “Grooming”, and “Sexual Abuse” Under Illinois Law. “Sexual misconduct” is defined under Faith’s Law as any act by an employee or agent of the school with direct contact with a student that is directed toward or with a student to establish a romantic or sexual relationship with the student. ISBE opines that “sexual misconduct” may include acts that would be considered “grooming” as defined under Section 11-25 of the Criminal Code, or “sexual abuse” as defined under Section 22-85 of the School Code. However, “sexual misconduct” may also include acts that do not rise to the level of “grooming” or “sexual abuse” as they are defined in Illinois law.
Employee Code of Professional Conduct
- Policy Communication. The employee code of professional conduct policy must be (1) posted on the school’s website; and (2) included in any staff, student, or parent handbook provided by the school. ISBE clarifies that the intent of Faith’s Law is for a school to publish the policy in all handbooks published by the school.
- Parent/Guardian Perpetrators. Notification procedures required under Faith’s Law are not applicable when the student’s parent or guardian is the alleged perpetrator of the misconduct.
- Students Over 18 Years Old. Parents or guardians do not need to be notified of alleged misconduct or formal action when the student is 18 years old or older.
- Prior Notice to Students. A parent or guardian may be notified before the student if an employee of the school deems it necessary to address an imminent risk of serious physical injury or death to the student or another person. If prior student notification is not provided, then notification to the student should be provided as soon as practicable.
- Release of Perpetrator’s Name. Faith’s Law does not require disclosure of the alleged perpetrator’s name in required notifications. However, there may be some circumstances where safety concerns necessitate such disclosure.
- Applicability of Notification Procedures to Non-Students. For allegations of sexual misconduct, notification procedures only apply to students who are enrolled at the time the allegations are made. With respect to notification once formal action is taken, schools are required to provide written notice, even if the student is no longer enrolled. If the student is no longer enrolled, sending the required notice to the student’s last known address fulfills the notification requirement.
Employee History Review
- Initiating Employment History Review. Schools/contractors must initiate a review of an applicant’s employment history prior to hire. This means, at a minimum, the school or contractor needs to (1) obtain copies of the Sexual Misconduct Disclosure Template, Authorization for Release of Sexual Misconduct-Related Information, and Current/Former Response Template; and (2) send the Authorization and Response Template to the applicant’s current and former employers prior to hire. An employer may hire an applicant if the current or former employer does not provide the requested information within 20 days of receiving the request.
- Referees, Officials, Etc. ISBE specifically names certain roles, such as referees and officials, in its FAQ, but does not state whether these individuals would be subject to employee history review requirements under Faith’s Law. Schools questioning whether a certain position entails “direct contact,” such that the employment history review requirements will apply, should consult with legal counsel.
- Volunteers. Schools are not required to complete employment history reviews for volunteers. The statutory language states that the employment history review only applies to permanent or temporary positions for employment, which would not include volunteers, no matter how regular or frequent the volunteer position is.
- Employment History Review Records are Not Public Records. Information received pursuant to an employment history review under Faith’s Law is not a public record. Therefore, it cannot be released pursuant to a FOIA request.
- Immunity From Liability. Employers, schools, and contractors who provide information or records for an employment history review are immune from criminal and civil liability for disclosing the records, unless the records provided were knowingly false.
- Applicant Refusal to Provide Information. Schools and contractors may not hire applicants who refuse to provide information required by Faith’s Law if they are applying for a position involving direct contact with children or students.
- Disqualification. Faith’s Law does not define what constitutes disqualification from employment of an applicant. ISBE advises that schools should consult with legal counsel regarding what would disqualify an applicant from working in a school based on the information received through the employment history review.
- Validity. Faith’s Law does not address how schools should handle breaks in service or how long the employment history review is valid. ISBE advises schools to consult with legal counsel regarding whether an employment history review is valid for certain returning employees or contractors.
- Current Employees (Hired prior to July 1, 2023). School employees or employees of contractors hired before July 1, 2023 are not required to undergo an employment history review.
- Review of Past Misconduct. Employers are not required to proactively review employee files or investigations conducted before Faith’s Law went into effect to determine if the employee’s past misconduct may qualify as “sexual misconduct” pursuant to Faith’s Law, absent a request for the employment history. However, once a request is made, employers should review all past investigations for the relevant employee.
- Student Teachers. Unpaid student teachers are not subject to employment history reviews.
If you have any questions about Faith’s Law and requirements for your school, please contact one of the authors of this post or any Franczek attorney.