BILL ANALYSIS Ó
AB 389
Page 1
Date of Hearing: April 3, 2013
ASSEMBLY COMMITTEE ON EDUCATION
Joan Buchanan, Chair
AB 389 (Williams) - As Amended: March 21, 2013
SUBJECT : Private schools: employees.
SUMMARY : Requires private schools to fingerprint all employees
who will have contact with minors; and, requires nonpublic,
nonsectarian schools to provide the Superintendent of Public
Instruction (SPI) evidence of a successful criminal background
check determination for each owner, operator and employee of the
school or agency.
EXISTING LAW :
1)Requires every person, firm, association, partnership, or
corporation offering or conducting private school instruction
on the elementary or high school level to require each
applicant for employment in a position requiring contact with
minor pupils that directly relates to services provided and
has background clearance criteria that meets or exceeds the
requirements of this section, who does not possess a valid
credential issued by the commission or is not currently
licensed by another state agency that requires a criminal
record summary to submit two sets of fingerprints prepared for
submittal by the employer to the Department of Justice (DOJ)
for the purpose of obtaining criminal record summary
information from the DOJ and the Federal Bureau of
Investigation (FBI).
2)Requires a nonpublic, nonsectarian school or agency that seeks
certification to file an application with the SPI; and,
requires the application to include affidavits and assurances
necessary to comply with all applicable federal, state, and
local laws and regulations that include criminal record
summaries required of all nonpublic, nonsectarian school or
agency personnel having contact with minor children.
(Education Code Section 56366.1)
3)Requires the governing board of any school district to require
each person to be employed in a position not requiring
certification qualifications, to have two fingerprint cards
bearing the legible rolled and flat impressions of the
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person's fingerprints together with a personal description of
the applicant prepared by a local public law enforcement
agency having jurisdiction in the area of the school district,
which agency shall transmit the cards, together with the fee
to the DOJ; except that any district, or districts with a
common board, may process the fingerprint cards if the
district so elects.
4)Prohibits any person who has been convicted of a violent or
serious felony to be hired by a school district in a position
requiring certification qualifications or supervising
positions requiring certification qualifications. A school
district shall not retain in employment a current certificated
employee who has been convicted of a violent or serious
felony, and who is a temporary employee, a substitute
employee, or a probationary employee serving before March 15
of the employee's second probationary year. Further specifies
that when the governing board of any school district requests
a criminal record summary of a temporary, substitute, or
probationary certificated employee, two fingerprint cards,
bearing the legible rolled and flat impressions of the
person's fingerprints together with a personal description and
the fee, shall be submitted to the DOJ.
5)Specifies the DOJ may provide subsequent state or federal
arrest or disposition notification to any entity authorized by
state or federal law to receive state or federal summary
criminal history information to assist in fulfilling
employment, licensing, certification duties, or the duties of
approving relative caregivers and nonrelative extended family
members, upon the arrest or disposition of any person whose
fingerprints are maintained on file at the Department of
Justice or the Federal Bureau of Investigation as the result
of an application for licensing, employment, certification, or
approval. (Penal Code Section 11105.2)
FISCAL EFFECT : Unknown
COMMENTS : According to the author, AB 389 establishes
uniformity between public and private/nonpublic schools
regarding employee background check requirements. Nonpublic
schools are private schools funded with public dollars to serve
students with exceptional needs. According to the California
Department of Education, there are 293 certified nonpublic
schools. Approximately 12,635 California students are educated
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each year in nonpublic schools located both in California and in
other states.
This bill requires all private schools, including nonpublic
schools, to fingerprint their employees who have contact with
pupils; and, the bill further clarifies that during the
certification process for nonpublic schools, the SPI shall have
access to evidence that demonstrates these schools are
completing the necessary background checks on their employees.
Nonpublic schools often serve the most vulnerable students. When
a child has needs that cannot be met in a public school setting,
that child may be educated in a nonpublic school at public
expense. Students qualified for placement in nonpublic schools
have exceptional learning, behavioral, or physical handicapping
conditions that negatively impact their educational progress.
Typical handicapping conditions of nonpublic school students
include: learning disabled, seriously emotionally disturbed,
developmentally disabled, autistic, speech and language
impaired, or other health impairments. These students, like all
California students, deserve to be protected but are potentially
most at risk of not being able to communicate abuse.
Fingerprinting at Private Schools and Nonpublic Schools :
Current law requires districts and charter schools to conduct a
background check on any certificated employee whose employment
status is temporary, substitute, or probationary or on any
non-certificated person who will be employed by the district.
Because districts and charter schools are required to establish
a relationship regarding employees with the Department of
Justice (DOJ) through the background check process, public
school districts and charter schools are notified of subsequent
arrests. This mechanism enables them to take immediate action
including conducting their own internal investigation of an
arrest. If necessary, a district or charter school can then
immediately remove an employee from a classroom to ensure
student safety.
Existing law exempts certificated or licensed employees at
private schools, including nonpublic schools, from the
background check requirements if these individuals possess a
valid California state teaching credential or are currently
licensed by another state agency that requires a criminal record
summary. Although the Commission on Teacher Credentialing (CTC)
and other licensing agencies require background checks, the law
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prohibits interagency sharing of records thereby preventing the
CTC from providing to districts information it receives from the
DOJ. Consequently, private schools, including nonpublic schools,
would not receive notification of any arrest of a certificated
employee if one occurred after they are hired.
Because public school districts or charter schools are required
to have a relationship established with the DOJ, the district or
charter school is quickly notified of an arrest and has the
ability to take immediate action and investigate the arrest.
However, since there is no existing requirement that a private
school, including a nonpublic school, establish a relationship
with the DOJ through background checks, a private school,
including a nonpublic school, would not be notified if an
employee is arrested, and under the current process, would not
be able to immediately undertake an investigation to ensure the
safety of students who interact with that employee.
AB 389 deletes the exemption for private school, including a
nonpublic school, certificated and licensed employees from
background checks. This bill is necessary to ensure that all
schools, including those that serve the most vulnerable of
students, have the information and tools necessary to ensure
student safety in the school environment.
Certification for Nonpublic Schools : The SPI certifies nonpublic
schools and part of the certification process requires the SPI
to confirm that the school is doing the proper background checks
on its employees. Due to privacy laws, the SPI is not able to
obtain the appropriate evidence that the background checks are
taking place when the employees are hired and that proper steps
are taken when someone is arrested after they are hired. This
bill requires nonpublic, nonsectarian schools to provide the SPI
evidence of a criminal background check and clearance on each
operator and employee. The committee should consider what
evidence the SPI will have access to as part of this requirement
and whether this evidence will be sufficient to certify the
process is being handled appropriately. The committee should
also consider whether the evidence obtained by the SPI will
violate any privacy laws. As currently drafted, the bill does
not require evidence of proper handling of arrest notices that
the nonpublic school receives after someone is hired, therefore,
committee staff recommends the bill be amended to clarify that
nonpublic schools must also provide evidence to the SPI that
proper action is being taken when employees are arrested after
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they are hired.
Committee Amendment : Clarify that nonpublic schools must also
provide evidence to the SPI that proper action is being taken
when employees have subsequent arrests after they are hired.
REGISTERED SUPPORT / OPPOSITION :
Support
State Superintendent of Public Instruction Tom Torlakson
(Sponsor)
Opposition
None on file.
Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087