ATPE leads successful effort to protect confidentiality of background check results
Senate Bill (SB) 9, passed by the Legislature in 2007, requires most public and charter school employees to undergo criminal background checks, including fingerprinting, as a condition of employment and certification. The Legislature provided in SB 9 that criminal history records obtained through the fingerprinting process would remain confidential. In other words, only authorized school district personnel and Texas Education Agency (TEA) staff members would have access to the information. The public would not.
Austin ISD was the first public school district to undergo the fingerprinting process mandated by SB 9. In June 2008, after the district had obtained its employees’ criminal history records from the Texas Department of Public Safety (DPS), Austin ISD staff members created an internal document from the records by compiling a list of all employees who had any criminal history. The list included the employees’ names, Social Security numbers, campuses, positions and dates of hire. Area media outlets began to request copies of these locally created records, so Austin ISD requested an opinion from the attorney general’s office as to whether the district had to turn the documents over.
The attorney general ruled that though the district could delete the names and Social Security numbers from the list, it had to release the rest of the document to the media. This ruling created a serious privacy issue: Because the internal document stated the position, campus and date of hire for each staff member with a criminal history, the media could easily identify individuals on the list. A reporter would simply have to file another open records request for employees’ names and dates of hire, compare the information, and reveal to the public which employees had criminal histories—even though some of the “histories” were nothing more than 30-year-old arrests later dismissed without prosecution.
ATPE held the position that the Legislature had intended the background check process to provide information school districts and TEA needed to ensure student safety, not information the media needed to generate sensational headlines and sweeps stories. ATPE also recognized that though only Austin ISD’s internal document was currently at issue, other districts would face similar situations as they underwent the fingerprinting process if they created local documents to put their results in a more usable form.
ATPE believed then as it does now that school districts and the State Board for Educator Certification (SBEC) have a responsibility to the public to examine background check results and, based on the information, take appropriate action to protect students and faculty. Airing the results of background checks publicly, however, would only serve to drive deserving educators away from the profession and make those considering a career in Texas public schools think twice. ATPE decided it had to act.
ATPE’s leadership on educator privacy
ATPE sought to protect educators’ privacy on two fronts—the courts and the legislative process.
In June 2008, ATPE was the first educators’ association to file a lawsuit challenging the attorney general’s interpretation in the Austin ISD case. In the suit, ATPE argued that the attorney general’s office had misinterpreted the statute and requested that the court overrule the attorney general’s ruling. ATPE hired a well-known expert on confidentiality issues to defend public educators’ privacy.
After ATPE filed the suit against the attorney general’s office, Austin ISD and another educator group “intervened” or joined the lawsuit. They, too, argued that the Legislature had intended to keep private those records that would reveal which educators had criminal histories. A Travis County district court heard the case in fall 2008. When the district court judge reluctantly ruled that the material had to be released, ATPE and the other intervening parties appealed.
In the meantime, ATPE sought sponsors during the 81st legislative session for bills that would close this internal-document loophole. ATPE lobbyists explained the issue to legislators, and Rep. Diane Patrick (R–Arlington) and Sen. Royce West (D–Dallas) agreed to file House Bill (HB) 3419 and Senate Bill (SB) 1858, bills that would fix the background check law.
Unfortunately, when lobbyists for the media discovered the possible legislation, they devoted considerable resources and editorial space to killing the bills. When it became clear that HB 3419 and SB 1858 would not pass as stand-alone bills, West and Rep. Jessica Farrar (D–Houston) added the original bills’ language to the DPS sunset bill through an amendment. ATPE thanks West and Farrar for taking this action and also thanks Sen. Juan “Chuy” Hinojosa (D–Mission) and Rep. Lois Kolkhorst (R–Brenham), the authors of the DPS sunset bill, for accepting the amendment. The passage of the DPS sunset bill (which Gov. Rick Perry signed into law) closed the loophole, thus ensuring that background check results—and therefore educators’ criminal histories—remain private.
Because the new legislation closed the loophole and fixed the problem that led ATPE to file the suit, the lawsuit was dismissed July 14, 2009. All parties, including the attorney general’s office, agreed that the records, which had been subject to disclosure, were now confidential.
Because of ATPE’s efforts, the fingerprinting process can now do what it was originally intended to do—provide school districts and the state with an efficient way of guaranteeing that only those educators who should be serving Texas children will be working in public schools. Although educators with questionable pasts will be held to account in a reasonable and orderly way, ATPE has ensured that educators undergoing state-mandated background checks need no longer fear the “guilty until proven innocent” glare of the media spotlight.
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