A new law passed during the 2007 legislative session requires that all certified educators who are currently employed by a school district must submit fingerprints to the State Board for Educator Certification (SBEC) and undergo a national criminal history background check. Texas Education Agency (TEA) staff has determined that approximately 400,000 educators currently employed across the state will be required to submit their fingerprints by Sept. 1, 2011 to comply with the new requirements. Accordingly, SBEC has proposed rules that establish procedures and timelines that must be followed by affected educators and school districts to ensure that fingerprints are submitted and processed in an orderly manner. SBEC will place the teaching certificates of all educators who fail to submit fingerprints in accordance with its rules on inactive status. Therefore, it is critical for educators to be aware of their obligations under the law.

Background

During the 2007 legislative session, Senate Bill 9 was passed to authorize and require background checks for those who have access to students in a public school setting and to ensure that individuals who have certain kinds of serious criminal history be removed from a public school setting. SB 9 requires that virtually anyone who has access to students must undergo a criminal history background check, including all school district employees, volunteers, substitutes, student teachers and some contractors. The legislation specifically mandates that certified educators must submit fingerprints to SBEC for a comprehensive, national criminal background check. The fingerprints will also be stored in a criminal history clearinghouse maintained by the Texas Department of Public Safety (DPS) so that any future criminal proceedings against an educator can be reported and acted upon.

The requirement that all certified educators undergo an extensive, fingerprint-based criminal history check represents the latest step in a trend towards increasingly stringent background checks of individuals who have close contact with children. Prior to the passage of SB 9, only new applicants for certification were required to undergo a criminal history background check. Employer school districts had the authority to conduct a criminal history check, but the choice of whether or not to conduct the check and the thoroughness of the check were left to the discretion of the district. Many uncertified school district employees were never subject to a criminal history review. The requirements of SB 9 mandate uniform criminal history background checks for all school districts across the state and are meant to ensure that those with certain types of criminal history do not “slip through the cracks” and have continued access to public schools.

How will SB 9 affect me?

Any educator who is employed by or is an applicant for employment by a public school district, open-enrollment charter school, or shared services arrangement and is required to hold a certificate issued by SBEC must be fingerprinted before Sept. 1, 2011. Educators who submitted their fingerprints to SBEC in support of an application for certification since Oct. 1, 2003, have already undergone a comprehensive criminal history check and will not be required to re-submit their fingerprints.

In an effort to identify educators who are subject to the requirements of SB 9 and collect their fingerprints in an efficient manner, SBEC has proposed rules outlining the process that will occur as follows:

• Fingerprinting will be conducted on a district-by-district basis.
• SBEC will select a district for fingerprinting and notify the district of the requirement to submit fingerprints.
• Within 15 days of receiving notification, the district must forward to SBEC the name, e-mail address, mailing address, and any other required information for all certified educators employed by the district at that time.
• SBEC will use the information provided by the district to notify the educators in the district via e-mail of the requirement to submit fingerprints. Educators in the selected district will have 80 days from the date of the e-mail notification to comply. If the fingerprints are not submitted within 25 days of the initial notice, SBEC will send a reminder notice to the affected educators.
• Educators who fail to submit their fingerprints within 80 days of the date of the e-mail notification will have their certificates placed on inactive status.

It is important to note that an educator’s obligation to submit fingerprints to SBEC is not triggered until that educator’s district is selected and SBEC initiates the process described in the proposed rules. Some school districts will be selected for fingerprinting as early as January 2008, while other districts will not be affected by these new requirements until 2011. SBEC has stated that the first district to undergo fingerprinting will be Austin ISD, where the agency hopes to begin collecting fingerprints in January 2008. SBEC staff anticipates that it may revise its process in response to issues that come up in Austin ISD and other districts selected for fingerprinting early on. However, SBEC is also currently developing some resources that it hopes to make available to districts in order to facilitate the efficient collection of fingerprints. Some possibilities that are being considered are to send the DPS contractor who has been selected to collect the fingerprints out to at least some of the affected districts in an effort to provide a convenient central location where educators can go to be fingerprinted. Additionally, SBEC may set up fingerprinting capabilities at Regional Education Service Centers.

The FAST Pass

The DPS has entered into a contract with a vendor to collect fingerprints from educators in accordance with the requirements of SB 9. The vendor, L1 Identity Solutions, uses a fingerprinting program called Fingerprint Applicant Services of Texas (FAST). The program collects fingerprints by taking a digital scan of the entire hand rather than the traditional process of taking an impression of a fingerprint that has been “inked and rolled.”

SBEC made the decision to use the DPS vendor’s FAST program due to problems that resulted from implementation of the conventional method of fingerprint collection when it began requiring fingerprints from new applicants for certification in October 2003. Under the conventional method, an applicant for certification was required to press his or her fingers onto an ink pad and roll them onto a card. The card that bore the fingerprint impression was then routed to DPS and the FBI. This method resulted in numerous delays in obtaining criminal history information because approximately 25% of the collected prints were rejected by the FBI due to poor quality and some fingerprint cards were lost in the mail. In an effort to correct these problems, SBEC began relying on the digital scan method of collecting fingerprints from new applicants for certification on June 7, 2006.

In order to properly submit fingerprints to SBEC in compliance with the requirements of SB 9, educators will be required to use the FAST process. When an educator receives the e-mail from SBEC indicating that it is time to submit fingerprints, the educator must log on to SBEC Online by going to www.sbec.state.tx.us and clicking on the link that reads “SBEC Online for Educators.” The educator will either be asked to create a new online profile or verify existing profile information and complete a fingerprint authorization form. Once the fingerprint authorization form is completed, the educator will receive an e-mail with a Fast pass attachment and must schedule a fingerprinting appointment with L1 Identity Solutions. The Fast pass must be printed out and taken to the fingerprinting appointment.

Local fingerprint checks do not satisfy SB 9 requirements

TCTA believes that some school districts may conduct fingerprint checks of their employees independently of the requirements of SB 9. However, it is important for educators to realize that only fingerprints submitted to L1 Identity Solutions pursuant to the SBEC process will satisfy the requirements of SB 9. Local districts may run their own fingerprint checks, but fingerprints collected by individual districts may not be used as an alternative to the criminal history check conducted by SBEC.

Who will be responsible for paying for fingerprinting?

Most teachers and paraprofessionals will not be required to pay for fingerprinting. On Sept. 21, 2007, Gov. Rick Perry, Lt. Gov. David Dewhurst and Speaker of the House Tom Craddick requested that TEA cover the costs of fingerprinting for current, active, certified educators out of its own budget. The term “current, active, certified educators” has been interpreted by SBEC staff to mean teachers and paraprofessionals who held a certificate issued by SBEC and were employed by a Texas school district or charter school during the 2006-07 school year. Accordingly, it appears that these educators will not be charged a fee for the fingerprinting. Other individuals required to undergo a criminal history background check, such as volunteers, substitutes, student teachers, noncertified employees and educators who were not employed in the public school system for the 2006-07 school year, will have to pay the applicable fees.

What will happen to educators who are discovered to have a criminal history?

SBEC staff will review criminal history information about certified educators on a case-by-case basis. Although it is difficult to predict with any certainty what factors will be considered, historically SBEC staff has taken into account the extensiveness of the educator’s overall criminal history, the period of time that has elapsed since the last criminal proceeding, the seriousness of the offense, the nature of the crime, and whether or not the crime is related to the duties and responsibilities of the education profession. Traditionally, SBEC has not sought to sanction the certification of educators with a criminal history that consists of an isolated misdemeanor, such as a DWI or “hot check,” and TCTA believes that SBEC intends to evaluate educator criminal histories in a manner that is consistent with its past practice. However, it is less clear how the revelation of a criminal history will be treated at the local district level. Employer school districts will be notified of the results of the criminal history background checks, and districts should evaluate and respond to an employees’ criminal background in accordance with local policy.

Certain types of serious criminal history may form the basis for certificate suspension or revocation and, in some instances, may render an individual ineligible for employment in public schools.

TCTA is ready to assist you

TCTA is working closely with SBEC, TEA and other governmental entities to ensure that all educators are given the opportunity to meet the requirements of SB 9 and maintain an active certification status. We also plan to work closely with SBEC and employer school districts to ensure that educators’ criminal histories are evaluated in a fair and impartial manner. We will keep you informed via e-updates (for those members for whom we have a valid e-mail address) as we receive information about fingerprinting in your area. Additionally, our Legal Department is available to TCTA members at (888) 879-8282 to respond to specific questions and can provide advice and assistance as the background check process progresses in accordance with the terms of your membership benefits.

What kinds of criminal history will impact my certification or ability to maintain employment in a school district?

SBEC and local school districts will review criminal history on an individual basis and take employment or certification action based on those reviews; therefore, these lists are not exhaustive and do not cover all types of criminal history that may result in certification sanctions or adverse employment action. However, various provisions of SB 9 mandate that some types of criminal history subject an educator to certificate suspension or revocation or render them ineligible for employment in public schools.

Criminal history that may result in certificate suspension or revocation under SB 9:
Criminal history that will render an educator ineligible for employment in public schools under SB 9:
• Conviction of a felony or misdemeanor involving moral turpitude;
• Conviction of a felony or misdemeanor involving a form of sexual or physical abuse of a minor or student or other illegal conduct in which the victim is a minor or student;
• Conviction of a felony involving the possession, transfer, sale, or distribution of or conspiracy to possess, transfer, sell, or distribute a controlled substance;
• Conviction of a felony or misdemeanor involving the illegal transfer, appropriation, or use of school district funds or other district property; or
• Conviction of a felony or misdemeanor involving an attempt by fraudulent or unauthorized means to obtain or alter a professional certificate or license issued by SBEC.
Texas Education Code § 21.060.
• Conviction of the felony offenses enumerated in Title 5 of the Penal Code, if at the time the offense occurred, the victim was under 18 years of age or was enrolled in a public school. These offenses include generally, criminal homicide, kidnapping and unlawful restraint, trafficking of persons, sexual offenses and assaultive offenses.
• An offense on conviction of which a defendant is required to register as a sex offender, if at the time the offense occurred, the victim was under 18 years of age or was enrolled in a public school.
• An offense under the laws of another state or federal law that is equivalent to the previously listed offenses.
Texas Education Code § 22.085.