An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

2. C RIMINAL H ISTORY I NFORMATION S CHOOLS M AY N OT S EEK O R C ONSIDER Schools may not seek or consider certain types of criminal history information when making hiring decisions:

 An arrest or detention that did not result in conviction. 206 A conviction is a guilty or nolo contendere (no contest) plea, criminal conviction, or other finding of guilt. A conviction does not require a criminal sentence or other punishment;  Referral to or participation in a pretrial or post-trial diversion program; 207  An arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of juvenile court law; 208 A non-felony conviction for possession of marijuana that is two or more years old; and 209  A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law (e.g., juvenile offense records sealed pursuant to Welfare and Institutions Code section 389 and Penal Code sections 851.7 or 1203.45), unless the school is required to obtain such criminal conviction information pursuant to state or federal law (see discussion in section 3.C, above. 210

A school’s consideration of this information in making hiring decisions is a misdemeanor if it is intentional. 211 Further, applicants who are denied employment or current employees who are denied promotions based on consideration of this information may sue the school and may receive damages and attorney’s fees. 212 LCW Practice Advisor Schools should maintain maximum confidentiality of CORI, including responses that no criminal records exist. Sharing of such information infringes upon the applicant’s right to privacy. 213 Furthermore, criminal 3. C RIMINAL C ONVICTIONS P REVENTING E MPLOYMENT A school may not employ an applicant in a position requiring contact with minor pupils until the DOJ completes its check of the state criminal history file. 215 The reason why is because individuals convicted of certain crimes are prohibited from working at a private school. For example, a private school may not hire an applicant if that person has been convicted of a violent or serious felony or if that person would be prohibited from employment by a public school district because of his or her criminal conviction. 216 Schools also may not hire applicants convicted of a “sex offense” or who have been determined to be a “sexual psychopath.” 217 Schools may not hire applicants convicted of crimes involving certain controlled substances. 218 However, if the conviction is reversed and the charges are dismissed, the school may employ the applicant. 219 If an applicant has obtained a certificate of rehabilitation, the school may not deny penalties may be imposed for the release of information to unauthorized individuals. 214

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 72