S.Amdt. 2090

SA 2090. Mr. WHITEHOUSE submitted an amendment intended to be
proposed to amendment SA 2089 submitted by Mr. Alexander (for himself
and Mrs. Murray) to the bill S. 1177, to reauthorize the Elementary and
Secondary Education Act of 1965 to ensure that every child achieves;
which was ordered to lie on the table; as follows:

At the end, add the following:

TITLE XI--PROTECTING STUDENTS FROM SEXUAL AND VIOLENT PREDATORS

SEC. 11001. SHORT TITLE.

This title may be cited as the ``Protecting Students from
Sexual and Violent Predators Act''.

SEC. 11002. DEFINITIONS.

In this title--
(1) the terms ``elementary school'', ``local educational
agency'', ``secondary school'', ``State'', and ``State
educational agency'' have the meanings given the terms in
section 9101 of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 7801);
(2) the term ``covered local educational agency'' means a
local educational agency that receives funds under the
Elementary and Secondary Education Act of 1965 (20 U.S.C.
6301 et seq.);
(3) the term ``covered school'' means an elementary school
or secondary school that receives funds under the Elementary
and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.);
(4) the term ``covered State'' means a State that receives
funds under the Elementary and Secondary Education Act of
1965 (20 U.S.C. 6301 et seq.);
(5) the term ``covered State educational agency'' means a
State educational agency that receives funds under the
Elementary and Secondary Education Act of 1965 (20 U.S.C.
6301 et seq.);

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(6) the term ``current school employee'' means a school
employee who has begun employment with a covered school,
covered State educational agency, or covered local
educational agency or an employee of any person or company
who has a contract or agreement to provide services with a
covered school, covered local educational agency, or covered
State educational agency before the effective date of this
title;
(7) the term ``designated State agency'' means the agency
designated in section 11003(d)(1)(A); and
(8) the term ``school employee'' means--
(A) an employee of, or a person seeking employment with, a
covered school, covered local educational agency, or covered
State educational agency and who, as a result of such
employment, has (or, in the case of a person seeking
employment, will have) a job duty that includes unsupervised
contact or interaction with elementary school or secondary
school students; or
(B) any person, or an employee of any person, who has a
contract or agreement to provide services with a covered
school, covered local educational agency, or covered State
educational agency, and such person or employee, as a result
of such contract or agreement, has a job duty that includes
unsupervised contact or interaction with elementary school or
secondary school students.

SEC. 11003. BACKGROUND CHECKS.

(a) In General.--Each covered State shall ensure that the
State has in effect laws, regulations, or policies and
procedures requiring that--
(1) a criminal background check be conducted for each
school employee in a manner that is consistent with title VII
of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) and
otherwise meets the requirements of this section, including--
(A) a search of the State criminal registry or repository
of the State in which the school employee resides;
(B) a search of State-based child abuse and neglect
registries and databases of the State in which the school
employee resides;
(C) a Federal Bureau of Investigation fingerprint check
using the Integrated Automated Fingerprint Identification
System, conducted in accordance with section 11006; and
(D) a search of the National Sex Offender Registry
established under section 119 of the Adam Walsh Child
Protection and Safety Act of 2006 (42 U.S.C. 16919); and
(2) each criminal background check conducted under
paragraph (1) be periodically repeated or updated in
accordance with State law or the policies of the covered
State educational agency or the covered local educational
agencies in the State.
(b) Timing of Background Checks.--
(1) Current school employees.--For a current school
employee--
(A) the criminal background check required under subsection
(a) shall be completed by not later than 3 years after the
effective date of this title or by the date of the current
school employee's next scheduled performance review as
provided by State law (including regulations), whichever is
first; and
(B) the employment of the current school employee shall not
be terminated by reason of this title while the criminal
background check is being conducted.
(2) All other school employees.--For any school employee
who is not a current school employee, the criminal background
check required under subsection (a) shall be completed before
the school employee begins employment.
(c) Exception for Current School Employees With Prior
Background Checks.--
(1) In general.--A covered State shall not be required to
obtain a criminal background check under subsection (a)(1)
for a current school employee if--
(A)(i) the current school employee has received 1 or more
criminal background checks (whether on one occasion or on
separate occasions) that included--
(I) a search of the State criminal registry or repository
of the State in which the current school employee resides;
(II) a search of the State-based child abuse and neglect
registries and databases of the State in which the current
school employee resides;
(III) a Federal Bureau of Investigation fingerprint check
using the Integrated Automated Fingerprint Identification
System, conducted in accordance with section 11006; and
(IV) a search of the National Sex Offender Registry
established under section 119 of the Adam Walsh Child
Protection and Safety Act of 2006 (42 U.S.C. 16919); or
(ii) the current school employee has received 1 or more
criminal background checks (whether on one occasion or on
separate occasions) that included 1 or more of the searches
and checks described in subclauses (I) through (IV) of clause
(i), and the designated State agency ensures that a criminal
background check including all of the remaining searches and
checks described in such subclauses is conducted for the
current school employee within the timeframe established by
subsection (b)(1)(A);
(B) each of the searches and checks described in subclauses
(I) through (IV) of subparagraph (A)(i) were conducted for
the school employee, whether as part of 1 criminal background
check or on separate occasions, on or after the date that is
5 years before the effective date of this title;
(C) the appropriate Federal, State, or local agency
provides the results of all the searches and checks described
in subclauses (I) through (IV) of subparagraph (A)(i) to the
appropriate body, as designated by State law or the policies
of the covered State educational agency or the employing
covered local educational agency; and
(D) the appropriate body, as designated by State law or the
policies of the covered State agency or covered local
educational agency, takes steps to verify all criminal
background checks in accordance with State law or the
policies of the covered State educational agency or the
employing covered local educational agency.
(2) Continued employment during verification period.--
(A) Continued employment.--During any period during which
the requirements of paragraph (1) are being verified for a
current school employee--
(i) the employing covered State educational agency, covered
local educational agency, or covered school shall not
terminate the employment of the covered school employee or
reduce the employee's pay or benefits by reason of this
title; and
(ii) nothing in this title shall be construed to prohibit
the covered State educational agency, covered local
educational agency, or covered school from transferring the
employee to a position not meeting the criteria of section
11002(8) during such period of verification.
(3) Periodic updating.--Each covered State shall ensure
that the State has in effect laws, regulations, or policies
and procedures requiring that, for each current school
employee who meets the requirements of this title through
paragraph (1), all of the searches and checks described in
paragraph (1)(A)(i) be periodically repeated or updated
through a criminal background check, in accordance with State
law or the policies of the covered State educational agency
or the covered local educational agencies in the State.
(d) Confidentiality of and Access to Background Checks.--
(1) Confidentiality.--Each covered State shall have in
effect laws, regulations, or policies and procedures that--
(A) designate a single State agency to administer the
criminal background checks required under subsection (a) and
paragraphs (1)(A)(ii) and (3) of subsection (c); and
(B) require that information obtained through a criminal
background check under subsection (a) or (c) shall only be
revealed to the school employee, the designated
representative of the school employee, and persons authorized
by the State to receive the information in order to make
employment decisions.
(2) Copy of background check results.--
(A) Upon request.--Upon a request by a school employee, the
designated State agency shall directly provide a copy of the
results of the criminal background check conducted pursuant
to subsection (a) or (c) to the school employee or to the
school employee's designated representative.
(B) Upon termination or disqualification.--If a school
employee is terminated or disqualified from employment under
subparagraphs (B) through (D) of section 11004(a)(3), the
designated State agency shall provide the school employee
with a copy of the results of any criminal background check
conducted under this title.
(e) Appeals Process.--
(1) In general.--Each covered State shall have in effect
laws, regulations, or policies and procedures--
(A) providing for a process by which a school employee may
appeal the results of a criminal background check conducted
pursuant to subsection (a) or (c) to challenge the accuracy
or completeness of the information yielded by the criminal
background check; and
(B) ensuring that--
(i) each school employee shall be given prompt notice of
the opportunity to appeal;
(ii) each school employee will receive instructions about
how to complete the appeals process; and
(iii) the appeals process is completed no later than 30
days after the appeal is filed for each school employee.
(2) Employment status of current school employees filing an
appeal.--If a current school employee is disqualified from
employment under section 11004(a) but files an appeal under
this subsection, during the pendency of the appeal, such
employee shall not lose employment or face a reduction in pay
or benefits. During the pendency of the appeal, the employing
covered State educational agency, covered local educational
agency, or covered school may place the school employee in a
capacity where the school employee's job duties do not
include unsupervised contact or interaction with children.
(f) Publication of Policies and Procedures.--Each covered
State shall ensure that the laws, regulations, or policies
and procedures required under this section are published on
the website of the covered State educational agency and the
website of each covered local educational agency that has a
website as of the effective date of this title.
(g) Fees for Background Checks.--
(1) Requirement for reasonable fees.--The Attorney General
of the United States, and the State Attorney General or other
State law enforcement official of a covered State, may charge
a fee for conducting a criminal background check under
subsection

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(a) or (c) if the amount of the fee does not exceed the
actual costs to the Federal Government or the State, as the
case may be, for processing and administration.
(2) Administrative funds.--A covered State educational
agency or covered local educational agency may use
administrative funds received under the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.) to
pay any reasonable fees charged for conducting criminal
background checks under subsection (a) or (c).

SEC. 11004. PROHIBITION ON HIRING & TRANSFER.

(a) Prohibition on Hiring.--Each covered State shall have
in effect laws, regulations, or policies and procedures that
prohibit any covered State educational agency, covered local
educational agency, or covered school from employing an
individual as a school employee if such employee--
(1) refuses to consent to a criminal background check under
section 11003;
(2) makes a knowingly false statement in connection with a
criminal background check under section 11003; or
(3) has been convicted of a felony consisting of--
(A) murder, as described in section 1111 of title 18,
United States Code;
(B) child abuse;
(C) child pornography; or
(D) a crime involving rape or sexual assault, except for
statutory rape where the victim and perpetrator engaged in
consensual sexual conduct, the victim and perpetrator were
both under the age of 21, and the victim and perpetrator
differed in age by not more than 3 years at the time of the
offense.
(b) Review.--
(1) In general.--Each covered State shall have in effect
laws, regulations, or policies and procedures that establish
a timely review process, not to exceed 30 days from the date
that an appeal is received by the State, through which the
State may determine that, notwithstanding paragraph (2) or
(3) of subsection (a), a school employee identified under
paragraph (2) or (3) of subsection (a) is eligible for
employment with the covered State educational agency, covered
local educational agency, or covered school. The review
process shall be an individualized assessment consistent with
title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et
seq.) and may include consideration of the following factors:
(A) Nature and seriousness of the offense.
(B) Circumstances under which the offense was committed.
(C) Lapse of time since the offense was committed or the
individual was released from prison.
(D) Individual's age at the time of the offense.
(E) Social conditions that may have fostered the offense.
(F) Relationship of the nature of the offense to the
position sought.
(G) Number of criminal convictions.
(H) Honesty and transparency of the candidate in admitting
the conviction record.
(I) Individual's work history, including evidence that the
individual performed the same or similar work, post-
conviction, with the same or different employer, with no
known incidents of criminal conduct.
(J) Evidence of rehabilitation, as demonstrated by the
individual's good conduct while in correctional custody or in
the community, counseling or psychiatric treatment received,
acquisition of additional academic or career or technical
schooling, successful participation in a correctional work-
release program, or the recommendation of a current or former
supervisor of the individual.
(K) Whether the individual is bonded under a Federal,
State, or local bonding program.
(L) Any other factor that may lead to the conclusion that
the individual does not pose a risk to children.
(2) Employment during review.--During the pendency of the
review described in paragraph (1) of a school employee, the
employing covered State educational agency, covered local
educational agency, or covered school may place the school
employee in a capacity where the employee's job duties do not
include unsupervised contact or interaction with children.
(c) Prohibition on Transfer.--A covered State educational
agency, covered local educational agency, covered school, or
any employee or agent of a covered State educational agency,
covered local educational agency, or covered school, shall
not knowingly transfer or facilitate the transfer of any
school employee if the agency, school, employee, or agent
knows or has reasonable cause to believe that the school
employee engaged in abuse of a child, unless--
(1) the allegations of abuse have been properly reported as
required by Federal, State, or local law, including title IX
of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.)
and the regulations implementing such title under part 106 of
title 34, Code of Federal Regulations; and
(2) with respect to the allegations--
(A) no prosecution is undertaken by local or Federal
prosecutors within 1 year of the report;
(B) the local prosecutors have indicated that the
individual will not be charged; or
(C) the school employee has been charged and exonerated of
the charges, as defined by law or by regulations or policies
of the State, covered State educational agency, or applicable
covered local educational agency.

SEC. 11005. REPORTING OF ABUSE ALLEGATIONS.

(a) Prohibition on Agreements to Withhold Allegations.--
Each covered State shall have laws, regulations, or policies
and procedures that--
(1) prohibit any State educational agency, local
educational agency, elementary school, secondary school, or
employee or agent of any State educational agency, local
educational agency, elementary school, or secondary school,
from making any agreement--
(A) to withhold, from any law enforcement authority, State
educational agency, local educational agency, elementary
school, or secondary school, the reporting of the fact that
an allegation of child abuse in an educational setting has
been made against a school employee or volunteer; or
(B) to waive any portion of subsection (c); and
(2) provide that the punishment for any violation of
paragraph (1) is not less than the punishment for a violation
of the State's law requiring mandatory reporting of concerns
of child abuse and neglect.
(b) Immunity From Liability for Reporting.--Each covered
State shall have laws, regulations, or policies and
procedures ensuring that, notwithstanding any other Federal,
State, or local law or any agreement or contract, any State
educational agency, local educational agency, elementary
school, secondary school, or employee or agent of any State
educational agency, local educational agency, elementary
school, or secondary school who reasonably and in good faith
reports to law enforcement officials information regarding
allegations of child abuse or a resignation or voluntary
suspension due to circumstances described in subsection
(a)(1) shall have immunity from any civil or criminal
liability.
(c) Warnings to Other Educational Agencies and Schools.--
Each covered State shall have in effect laws, regulations, or
policies and procedures ensuring that, notwithstanding any
other Federal, State, or local law or any agreement or
contract, if the State educational agency or any local
educational agency, elementary school, secondary school, or
employee or agent of the State educational agency, local
educational agency, elementary school, or secondary school,
has reasonably and in good faith reported to law enforcement
officials information regarding allegations of child abuse in
an educational setting made against a school employee, and
the circumstances described in section 11004(c)(2) do not
apply to such allegations, the agency, school, employee, or
agent may share the report with any other State educational
agency, local educational agency, elementary school, or
secondary school that is considering hiring that school
employee.
(d) Training.--Notwithstanding any other provision of this
title, a local educational agency may use funds provided
under part A of title II of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 6601 et seq.) to train
school employees in--
(1) recognizing signs of abuse, neglect, or sexual abuse in
students;
(2) properly identifying and reporting suspected child
physical or sexual abuse, including appropriate behaviors by
school personnel and inappropriate behaviors, such as
grooming behaviors (defined as actions deliberately
undertaken with the aim of befriending and establishing an
emotional connection with a child to lower the child's
inhibitions in order to sexually abuse the child); and
(3) effectively responding to incidents of child physical
and sexual abuse, including linking students and families to
law enforcement, school, community, mental health, or medical
supports.

SEC. 11006. FBI REQUIREMENTS FOR FINGERPRINT CHECKS.

Notwithstanding any other provision of law, if a
fingerprint check by the Federal Bureau of Investigation,
conducted pursuant to section 11003(a) or in accordance with
section 11003(c) after the effective date of this title,
reveals a record that indicates that an individual was
arrested or criminal proceedings were instituted against an
individual, but that does not include the final disposition
of the arrest or proceeding, the Federal Bureau of
Investigation shall--
(1) further investigate the school employee's criminal
history until the earlier of--
(A) the date on which the Bureau is able to determine
whether a final disposition was reached and what the final
disposition was; or
(B) 3 business days (exclusive of the day on which the
initial request is made) after the date of the initial
request;
(2) notify the State through the designated State agency of
the results of the further investigation; and
(3) promptly correct the record, including by making
deletions to the record, if the Federal Bureau of
Investigations determined that the record was inaccurate.

SEC. 11007. RULES OF CONSTRUCTION.

Nothing in this title shall be construed to--
(1) alter or otherwise affect the rights and remedies
provided for school employees residing in a State that
disqualifies individuals for employment as a school employee
based on convictions for crimes not specifically listed in
this title;
(2) prevent a State or locality from applying the
requirements of this title to State educational agencies,
local educational agencies, elementary schools, or secondary
schools that do not receive funds under the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.); or

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(3) create a private right of action against a State
educational agency, local educational agency, elementary
school, secondary school, or an employee or agent of a State
educational agency, local educational agency, elementary
school, or secondary school that is in compliance with this
title and with any laws, regulations, or policies and
procedures promulgated pursuant to this title.

SEC. 11008. EFFECTIVE DATE.

This title shall take effect on the date that is 2 years
from the date of enactment of this Act.
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