Jan 02, 2013

Courts Apply New Law Regarding Employment of Ex-Offenders by School Districts

Until recently, the Pennsylvania School Code imposed a five-year impediment to school employment for those convicted of certain felony offenses. 24 P.S. §1-111(e). In 2012, that law was amended to impose a lifetime lookback to disqualify ex-offenders with certain convictions from employment by a school. The amendments also added new offenses to the list of disqualifying convictions. Section 1 of Act 24 of 2011 (Act 24).

There has been some controversy regarding the constitutionality of the lifetime ban. To determine whether a statute is unconstitutional under Article 1, Section 1 of the Pennsylvania Constitution, a substantive due process inquiry must take place. When making that inquiry, the court considers the rights of the parties involved and the public interests sought to be protected. Article 1, Section 1 has been consistently interpreted as guaranteeing an individual’s right to engage in any of the common occupations of life. The court also weighted the public policy of not stigmatizing former offenders.

The Commonwealth Court of Pennsylvania recently posted opinions in three cases concerning disqualification of current school employees who have past convictions. The Court examined whether the 2012 amendments to 24 P.S. §1-111(e) permitted school districts to terminate or disqualify employees based upon prior convictions, even if the offenses occurred a long time ago.

In all three cases, the former offenders were current employees of the school district and qualified for employment under the pre-amendment law. However, upon amendment, the employees were suspended or terminated on the bases of offenses (voluntary manslaughter, felony drug offenses) that occurred between 20 and 30 years ago. The Commonwealth Court reasoned that, in these cases, termination of the ex-offenders did not bear a real or substantial relationship to the purported interest of protecting children.

The court reasoned that the offenses occurred long ago and were not in any way predictive of future behavior. Also, the court emphasized that the offenses had no effect on the employees’ ability to perform the duties of their current positions. Therefore, the court concluded, it would be unconstitutional to apply the law to permanently ban the employees from employment with the school district.

Under the facts of these three cases, the court held that the school districts could not permanently disqualify the employees from working in the district. However, the court made it clear that the application of the new amendments will be specific to the unique facts of each case. Furthermore, it is clear from these decisions that there is no per se ban on disqualifying employees with past convictions, no matter when those convictions occurred.

While there may be circumstances justifying a permanent ban from employment in a district, the school district has the burden of proof. It must establish that its action reasonably serves government interests such as health, safety, welfare, and the morals of the public. Click here for the related Basic Education Circular issued by the Pennsylvania Department of Education.

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