WHT Law

Background Checks for “Nonrecognized” Public Schools

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Background Checks for “Nonrecognized” Private Schools

QUERY: Whether private schools not considered “Recognized” by the Illinois State Board of Education need to conduct criminal background checks for teachers?

RESPONSE: No, unless the non-public schools are approved 14-7.02 special education facilities, Archdiocese schools, or are subjected to licensing by DCFS.

ANALYSIS: On August 23, 2007, Illinois passed P.A. 95-351, which amends 105 ILCS 5/2-3.25o to create subsection (c-5) to require non-public elementary and secondary schools seeking registration and/or recognition from ISBE after July 1, 2007 to comply with criminal background records information checks for employees and contractors with public school. Such schools must follow the same standards as public schools with regards to background checks. Non-public schools who fail to comply will be prohibited from attaining recognition status with ISBE.

The text of P.A. 95-351 is attached as Exhibit A (see all exhibits attached at end of memo). Attached at Exhibit B is the legislative history of the Act. Please note that a search of all legislative records and transcripts was conducted and no floor debates were recorded. The bill passed 115 to 1.

Prior to this Act, most non-public schools were note required to perform background checks under state or federal law. Public schools are required to obtain background checks for all employees pursuant to 105 ILCS 5/10-21.9 (Exhibit C). However, non-public schools approved as 7.02 non-public special education facilities must perform background checks pursuant to the non-public rules at 23 Ill. Admin. Code 401.260(a)(4) (attached as Exhibit D).

In addition, is any non-public school subject to licensing by DCFS under the Child Care Act of 1969, 225 ILCS 10/4.1 (attached as Exhibit E)? The DCFS rules at 89 Ill. Admin. Code 385 detail this requirement (Exhibit F). A final exception is the Chicago Archdiocese, whose own internal policies require criminal background checks for all school personnel. (Exhibit G).

Illinois encourages all employers of personnel working with children to conduct background checks of potential employees.  Illinois recently made the provisions of the Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-248) accessible to private schools in Illinois.  This Act allows schools not authorized under 105 ILCS 5/10-21.9 access to the FBI repository for national background checks.  It also allows 14-7.02 facilities to conduct fingerprint based background checks on employees as required by 105 ILCS 5/10-21.9.  In the past, these 14-7.02 non-public facilities have been unable to process the background information in the same manner as public schools, even though they were required to perform t eh checks under 23 Ill. Admin. Code 401.260(a)(4).  This Act now closes that loophole.  Information on the Adam Walsh Child Protection and Safety Act of 2006 is at Exhibit H.

Finally, should a private school wish to obtain “Recognition” status with ISBE, we have attached some ISBE information explaining the steps and benefits at Exhibit J.

Exhibits A – J