Our laws cannot allow public schools to shield sexual predators

The Biden administration recently announced its new proposed Civil Rights Data Collection (CRDC), providing numerous revisions to the most authoritative repository of information on civil rights in public schools. Predictably, the Biden proposal seeks new data on coronavirus responses and LGBTQ issues, including the addition of a nonbinary sex category. Commendably, the new version retains expanded provisions on religious harassment that we had added last year when we headed the U.S. Department of Education’s Office for Civil Rights (OCR). 

Shockingly, however, the Biden proposal eliminates some of the most important provisions that we had added, particularly, new questions regarding practices that shield sexual predators from public scrutiny.

In the last year of the Trump administration, we designed a new civil rights data collection that would highlight the most alarming trend that our team had observed: the disturbing increase in sexual assault in K-12 public schools. Over the preceding decade, the public had become increasingly aware of sexual assault in higher education. But the public school problems had been largely swept under the rug. In fact, in 2019, OCR’s receipt of K-12 sexual harassment complaints, including complaints of sexual violence, was fifteen times greater than it was in 2009. The significant increase in complaints, together with explosive revelations in the Catholic Church, provoked an obvious question: Is there a similar problem in the public schools? 

In September of 2019, we led the largest investigation that the agency had ever conducted into sexual assault within an urban public school system. What we found in Chicago Public Schools was a wake-up call: countless horrific incidents, many involving teachers or coaches, that had been inadequately addressed. And there is no reason to assume that this problem is not recurring elsewhere.

In February of last year, we launched a nationwide initiative to combat the rise of sexual harassment and sexual assault in K-12 in public schools. We opened two dozen compliance reviews across the country involving both student-on-student and staff-on-student incidents — and aimed to improve the collection of sexual assault data. We launched data reviews to examine how schools were collecting and reporting CRDC sexual assault data and added new questions to the CRDC to collect information on teacher-on-student sexual assault. 

The most concerning issue — and the one that is stripped from the Biden version of our collection — are the new questions we added to get information on “pass the trash” trends in schools. “Pass the trash” is the name for the practice whereby a school employee who engages in sexual misconduct with a student is “passed” from one district to another. In these situations, the teacher accused of sexual misconduct resigns before he or she is terminated, or even prior to the conclusion of an investigation. The sexual predator obtains employment in a new district where they prey on new student-victims. Because the investigation ends with the teacher’s resignation, there is no formal finding of wrongdoing to share with victims or with subsequent employers. In other situations, sexual predators are reassigned to other positions or schools within the same district.  It is commonly used by administrators who wish to pacify angry parents by moving an alleged perpetrator to a different location in which families are unaware of his background. 

This practice was infamously used recently in Loudoun County, Va., where a student accused of raping a girl in a bathroom was moved to a different school. The superintendent denied that the case had happened and the victim’s father was arrested after trying to disclose the matter at a school board meeting. The case exploded into public attention, possibly influencing Virginia’s recent statewide election when the perpetrator was later arrested for assaulting a different girl at his new school, and evidence emerged suggesting a cover-up by school administrators. 

“Passing the trash” has been so widespread that Congress included provisions requiring states to adopt policies to protect students in the bipartisan Every Student Succeeds Act, which was signed into law in 2015. 

The Biden administration’s proposal to eliminate data collection on “pass the trash” is a dreadful mistake. The proposal perpetuates practices we sought to overturn: concealment and secrecy in teacher sexual misconduct cases. It is time these incidents are brought to light. The news from Loudon County reveals the tragic consequences when such information is shielded from public view. Parents and students deserve to know how their schools are dealing with sexual misconduct. Ensuring that students are protected should be a bipartisan issue. 

If the Biden administration is concerned about enforcing Title IX and protecting victims of sexual assault, they should not weaken the Civil Rights Data Collection. They should prioritize transparency and student safety and maintain the CRDC’s “pass the trash” provisions. 

Kenneth L. Marcus served as the 11th assistant U.S. Secretary of Education for Civil Rights (2018-2020). Kimberly M. Richey served as principal deputy assistant secretary for Civil Rights (2018-2020) and acting assistant secretary for Civil Rights (2020-2021).