Without excuse: Religious, private schools still schlepping in child protection

I’m a lawyer in private practice in New York, and 10 years ago, in 2006, something truly unusual occurred.

I wrote a letter to the New York State Legislature, and six months later, they passed an important child protection law, affecting nearly one-half million children, which Governor Pataki quickly signed. A few months after that, I received a box in the mail, delivering a ceremonial bill pen, and a certificate, from the Governor.

There were no public hearings. There were no lobbyists. Big media didn’t write a single word. I never stepped foot in Albany. I had a few phone calls with legislative staffers, particularly those working for Senator Dean Skelos, and Assemblyman Harvey Weisenberg, the bill sponsors.

How did this happen? And where do we stand now?

Working on a case, I noticed an irrational situation existing within our New York statutes. A statute is a bill that was passed by the State Legislature, which consists of two houses, the 150-member Assembly, and the 63-member Senate. Next, the Governor must sign the bill. The bill is now law, or a statute.

In my research, I noticed that several statutes within our State Education Law protected public school children, but intentionally omitted the same protections for the children who attend our state’s religious and private schools.

New York public schools are required to fingerprint and perform criminal history searches on their employees. All public school employees are mandated to report child abuse to the police or child protection services. All public school administrators and teachers are required to take coursework in identifying child abuse, and preventing violence. All public schools must have written polices and safety plans to prevent child abuse and violence. These, and other child protection laws, apply to the public schools, but not the non-public schools.

In my 2006 letter to the Legislature, I pointed out the manifest illogic and inequity of laws that protect some of our children, but not all of our children.

I also informed the Legislature that not only were non-public schools not required to fingerprint and background check their employees, but there was also an archaic but still binding labor law from the mid-1930s that actually prohibited them from doing so.

The Legislature responded by passing a bill that at least permitted non-public schools to fingerprint and background check their prospective employees. Permitted, but not required.

The fingerprints would be sent to the FBI, where a national criminal history search would be done, for all potential 50-state and federal criminal convictions.

Ten years later — last summer — I made a Freedom of Information Law request upon the New York State Education Department, which manages the optional fingerprint program for the non-public schools: I asked them to tell me how many non-public schools are fingerprinting their employees. I asked them to tell me if any prospective employees had been rejected for non-public school employment because of their serious criminal histories. I asked them, in fact, a whole bunch of questions – after all, I’m the author of the law.

The results, which I received in November, are disappointing, illuminating, and educational. Here are the highlights:

• Of about 1,900 non-public schools in New York, only 70 are fingerprinting their prospective employees.

• Among the 70 schools that fingerprint, only two are Jewish schools — North Shore Hebrew Academy in Great Neck, and Shema Kolainu in Brooklyn. There are about 400 private Jewish schools in New York.

• The State Education Department denied clearance for employment to eight prospective job applicants, who sought work in six non-public schools. They had serious criminal histories.

• Some of the crimes that got these nonpublic school job applicants rejected included: felony drug trafficking and possession, bank fraud, forgery, car theft, criminal impersonation, embezzlement, larceny, drunk driving.

• Since 2001, when statewide public school employee fingerprinting became legally required, the State Education Department has denied clearance for employment to about 3,200 public school job applicants in the 57 counties outside New York City, based on their serious criminal histories. (The New York City Department of Education refused to tell me their numbers for New York City public schools.)

It should be noted that the above statistics do not, and cannot, reveal how many job applicants with serious criminal histories were deterred from applying for employment after they were told that fingerprinting was part of the job application. Think of all the convicted sex offenders who slinked away from our yeshivas, Catholic schools, and other private schools where they have been known to inflict great damage upon innocent children, up until the present day.

The solution is not complicated. Employee fingerprinting needs to be legally required in New York’s nonpublic schools.

In fact, one year after my law was passed, in 2007, I continued to work with Senator Skelos to amend the law to make the fingerprinting mandatory. The bill passed the State Senate, but alack and alas, the Assembly refused to vote. There were elements within the ultra-orthodox Jewish community who were against the bill. Surprisingly, also, there are some within the modern, centrist community who do not support the bill.

In the 10 years that have since elapsed, various legislators have again sponsored amendments that would make the fingerprinting mandatory, but these efforts fizzled out. Enthusiasm, perseverance, and idealism are uncommon character traits among New York’s legislators.

In failing to pass child protection laws for our nonpublic school children, New York’s lackadaisical legislators have even ignored the pleas of some of the best and the brightest minds among the nonprofit child protection and advocacy organizations. The New York Society for the Prevention of Cruelty to Children, the American Professional Society on the Abuse of Children – NY Chapter, Prevent Child Abuse New York, and Children’s Healthcare is a Legal Duty have all come out on the record in favor of a mandatory employee fingerprint bill for New York’s nonpublic schools. The Rabbinical Council of America and Ohel Children’s and Family Services support the bill. The New York State Catholic Conference – the “official voice of the Catholic Church in the Empire State”, their website states – supports mandatory employee fingerprinting.

Clever opponents of a mandatory fingerprint bill will tell you that many, or even most, of New York’s non-public schools already are doing employee background checks, but without the fingerprinting. They assert that there are schools which are utilizing private companies to background check, and government fingerprinting is, therefore, unnecessary. There are a few problems with this argument.

First, the opponents have no proof. Nobody is surveying the nonpublic schools to see who is doing private company criminal history searches, and who is not. (The one exception is the Catholic Church, which self-reports that all of their schools background check their employees through non-fingerprint, name and date-of-birth criminal history searches conducted through a private company.)

Second, at least in New York State, the background checks performed by private companies are partial only. The private company searches report felonies only, and not misdemeanors, which can be quite serious – sex abuse, assault, drugs, child endangerment, and other crimes. (I, personally, conducted private company background searches on people who I knew were convicted of serious misdemeanors in New York – and I received reports stating no criminal records!)

Third, identity fraud is a major problem. Social security cards, driver’s licenses, and even birth certificates can be forged, or purchased. For this reason, the private, non-fingerprint, name and date-of-birth background check companies do not guarantee their results. FBI fingerprint checks, on the other hand, have a near-perfect accuracy rate. Fingerprints don’t lie, cheat, or steal.

Fourth, there are some private schools in New York, and other employers, who are conducting criminal history searches through the website of the New York State Office of Court Administration. The difficulty here is that OCA even admits that they report partial results only. They do not report all misdemeanors, out-of-state criminal convictions, and federal convictions.

Meanwhile, across the nation, word is long out that child protection laws are the best thing going for preventing child abuse in the non-public schools that educate nearly 10 percent, or 5 million, of America’s children.

Big states, with large nonpublic school populations, including, California, Florida, Illinois, Maryland, Massachusetts, Michigan, Ohio, and Pennsylvania legally require their nonpublic schools to fingerprint their employees. Convicted sex offenders and other persons with serious criminal histories need to look for work elsewhere in those states.

Closer to home, we can look at the results of New York City’s new pre-K program. All job applicants must be fingerprinted. In September 2014, Politico New York reported that the City “fingerprinted 3,000 employees who will be working in pre-K centers, and has cleared 2,755 of them…The remaining 245 employees will not be allowed to work in pre-K centers…All of those who were rejected were found to have (serious) criminal records.”

We will never know how many thousands of our children’s lives have been safeguarded and preserved because legally mandated employee fingerprinting kept the school gates closed to convicted sex offenders and other dangerous persons.

The time is long overdue for the New York State Legislature to realize the common wisdom of an ounce of prevention being worth a pound of cure. Child sex abusers and other dangerous persons want to work near children and other vulnerable populations. We must keep them out of our schools, both public and non-public. Child protection laws for the nearly one-half million New York nonpublic school children is a necessity. The 2006 law that made it optional for non-public schools to fingerprint their employees needs to be amended. The fingerprinting needs to become mandatory. Ten years of schlepping needs to come to an end. The New York State Legislature begins its 2017 session in January, and these issues needs to be a high priority. All people of good will, who care about all children, and particularly our own Jewish community, must join forces to assure that child protection legislation for our religious and private schools is finally enacted.

—

Elliot Pasik is a lawyer in private practice, who works in Cedarhurst, and resides in Long Beach, NY. He is co-founder and president of Jewish Board of Advocates for Children, an advocacy group. He may be reached at efpasik@aol.com.