In Illinois, Faith’s Law squarely addresses educator sexual misconduct of students within K-12 school environments. Faith Colson, an Illinois high school graduate, advocated for state legislative changes after experiencing sexual abuse by a high school teacher in the early 2000s. Other adults suspected inappropriate behavior by the teacher, though they did not report their concerns. As a result of legislative advocacy and related societal trends, Faith’s Law was enacted in two parts – the first effective in December 2021, and the second effective on July 1, 2023.
Notable components of Faith’s Law prove critically important for enhanced student safety, as follows:
(a) defining “sexual misconduct”;
(b) requiring that schools adopt and distribute an employee code of professional conduct addressing staff-student relations;
(c) adding “grooming” within the definition of “abused child”;
(d) adding extensive employment history reviews as part of the school staff hiring and vetting process:
(e) requiring notices to parents/guardians of alleged act of sexual misconduct; and
(f) making other mandatory changes for handling allegations of sexual misconduct.
Given the significance and detailed nature of these requirements, all school leaders in Illinois should follow through on legal compliance and implement related protocols for addressing such issues. School leaders in other states should remain attentive to potentially similar legal requirements. Regardless of whether Faith’s Law is applicable or not, all school leaders should seek to minimize and watch out for any sexual misconduct involving school personnel, to prevent resulting harm and any related liability.
Applicability
Faith’s Law applies to all public and private schools that provide elementary or secondary education. School employees, including teachers, substitute teachers, and other staff, are covered by these laws. “Contractors” are covered too – that is, people who have contracted for services in direct contact with children or students, such as food service workers, school bus drivers and other transportation employees.
ISBE’s Enforcement
The Illinois State Board of Education (“ISBE”) is charged with overseeing legal requirements applicable to school under its jurisdiction, such as public schools, charter schools, and nonpublic schools seeking ISBE-recognition. The statutory obligations reflected in Faith’s Law do not include any expressly identified penalties for non-compliance. Nevertheless, the ISBE holds authority over covered school programs, and therefore the ISBE should expect that schools comply with Faith’s Law. Significantly too, a school’s non-compliance could potentially be used as evidence, in the event of any criminal or civil court action or other claim arising from harm caused to a student by sexual misconduct that occurs within a school context.
Key Components of Faith’s Law
Defining “Sexual Misconduct” in Schools
Faith’s Law broadly defines the term “sexual misconduct” as “any act, including, but not limited to, any verbal, nonverbal, written, or electronic communication or physical activity, by an employee or agent of the school district, charter school, or nonpublic school with direct contact with a student that is directed toward or with a student to establish a romantic or sexual relationship with the student.”[1]
Additionally, Faith’s Law provides illustrative examples of sexual misconduct, as follows:
· a sexual or romantic invitation;
· dating or soliciting a date;
· engaging in sexualized or romantic dialogue;
· making sexually suggestive comments that are directed toward or with a student; or
· self-disclosure or physical exposure of a sexual, romantic, or erotic nature;
· sexual, indecent, romantic, or erotic contact with a student;
Sexual misconduct thus includes far more than crimes of statutory rape, molestation, or other only physical assault. It also includes many sexually oriented communications and other actions that would constitute grooming.[2]
Given this wide scope of defined misconduct, school leaders should be extremely proactive with related preventive measures, training, attentiveness to problems, and responding to any allegations of such behavior. Not only are such measures important for compliance with Faith’s Law, they are otherwise very helpful for protecting students, avoiding problems for school workers, and risk management overall.
Required Employee Code of Professional Conduct
Central to Faith’s Law is awareness. In other words, the above definitions and examples carry questionable effectiveness without related communications. Faith’s Law thus requires that schools adopt and distribute an employee code of professional conduct (“Code”). The Code should address how school staff may maintain a professional relationship with students, including staff-student boundaries. The Code must legally include five elements:
1. Incorporate the Code of Ethics for Illinois Educators adopted by ISBE;[3]
2. Include the above definition of “sexual misconduct”;
3. Identify expectations for school workers, including guidelines for (i) transporting a student; (ii) taking or possessing a photo or video of a student; and (iii) meeting with or contacting a student outside of the employee’s professional role.
4. Include employee mandated reporting requirements under Illinois law; and
5. Reference required training related to child abuse and ethics required under state and federal law.
The key goal here is to educate school staff on what is required of them and their peers, particularly so that prohibited misconduct may be avoided as much as possible and otherwise identified and reported.
Notably, the Code must be publicized through posting on the school’s website. The Code also must be included in any school staff, student, or parent handbook. The ISBE has also published an extensive FAQ guide that further addresses the Code’s requirements and its implementation.
Required Employment History Review
Faith’s Law imposes significant employment history review protocols for all prospective covered workers. Schools may be already carrying out such preliminary measures, as part of their own risk management protocols. Doing so now in light of Faith’s Law is particularly important for legal compliance and risk reduction.
The employment history review requirements involve the following steps, all as detailed in the ISBE’s helpful FAQ guide:
a. An applicant must complete and sign a sexual misconduct disclosure form with current and former employers including name, address, telephone, and other relevant contact information - and the ISBE has developed a prescribed form.
b. An applicant must also complete and sign a written authorization disclosure form – and the ISBE has likewise developed a standardized form.
c. The school must then contact the listed employers provided by the applicant on the disclosure form, obtain dates of such employment, and gather any information regarding allegations of sexual misconduct by the applicant.[4]
Notably, if the applicant does not provide this information, then a school may not employ an applicant to work with students. Additionally, these requirements are not applicable to volunteers, although similar reference check measures would be advisable and consistent with best practices. Schools should also likely carry out further steps for all applicants who work with students, such as standard background checks, interviews, and other customary due diligence measures. A school could hire an applicant pending successful completion of the Faith’s Law-mandated review, but the worker should not start his or her school duties until then.[5]
Required Parental Notification of Alleged Sexual Misconduct
Faith’s Law contains important but relatively narrow notification requirements. More specifically, if a school administrator becomes aware of allegations of sexual misconduct (as defined above), the school must notify the affected child’s parents or guardians of such allegations. Additionally, the school must notify them of any formal employment-related action involving the alleged perpetrator. The mandatory notice must include a list of available resources within the community to support the student and their family. ISBE has compiled a resource guide that satisfies this legal requirement. A school may include other resources too.
Prior to notifying a parent or guardian, a school should notify the affected student in a developmentally appropriate way that the school will be notifying the student’s parent or guardian, what will be included in that notice to their parent, and what resources are available to them within the community for support. No notification is legally required, however, if the parent or guardian is the alleged perpetrator. Additionally, no prior notice to the student is statutorily required “in the event of an imminent risk of serious physical injury or death of a student or another person, including the victim.”[6]
Other Mandated Reporting
Keep in mind too that such notifications under Faith’s Law are distinct from mandatory reporter legal obligations that may arise for teachers and other school personnel.[7] Such separate reporting obligations generally arise upon knowledge of reasonable cause to believe a child may be abused or neglected, including sexual abuse as that term is defined under applicable state law. Mandated reporters are required to either file reports of the suspected abuse to the appropriate state authority or ensure someone else within the school has made the report – typically online or via telephone, and with related documentation as warranted. Training on such obligations is key too, and it may be required under applicable state law (as is true in Illinois). These mandatory notifications are also apart from any criminal investigation that may be undertaken by police or in connection with a civil lawsuit.
Importantly as well, schools need to exercise substantial discernment and discretion in determining the extent and content of any notifications to other people, particularly since such allegations can be quite serious and may or may not be true. They thus could lead to potential adverse claims by accused persons (e.g., defamation, invasion of privacy claims) and other unintended consequences. If and when an allegation of sexual misconduct arises, school leaders should carefully evaluate how best to address it beyond the Faith’s Law requirement – possibly in consultation with legal counsel and/or crisis management personnel.[8]
Following Through
Schools should be continually attentive to both actual safety for students and for effective risk mitigation measures too. Ultimately, the legal obligations per Faith’s Law should be beneficial to children and school staff alike, helping everyone to avoid problematic unwanted situations. Specific requirements are important for schools located in Illinois. Other nonprofit organizations serving students may be wise to follow Faith’s Law’s parameters, such as to clearly define “sexual misconduct,” utilize a code of professional conduct for workers (employees, contractors, and volunteers too), check prospective employees’ backgrounds, and particularly to address any allegations responsibly in accordance with legal requirements and related best practices.
[1] 105 ILCS 5/22-85
[2] For more information about grooming and how to prevent it, check out our blog article.
[3] See 23 Il Adm Code 22.20.
[4] Per ISBE’s Q/A No. 49: “There is no time limitation in the statute. An applicant must provide the names of all former employers that were schools or school contractors, and all former employers at which the applicant had direct contact with children or students were schools or school contractors, and all former employers at which the applicant had direct contact with children or students.”
[5] See ISBE's FAQ Guide at Q/A No. 53.
[6] See ISBE’s FAQ guide for further information. Correspondingly, “[i]f prior notification to the student is not given, notification to the student shall be provided as soon as practicable and without delay following the notification to the student’s parents or guardians. (Q&A No. 15, citing 105 ILCS 5/25-85.10(c)).
[7] For more information about mandated reporter and training obligations, particularly in light of Illinois’ legislative changes in 2020 but with broader implications too, please see our law firm’s mandated reporter article.
[8] See also our firm’s blog articles on incident reports and handling suspected child abuse.
