The Federal Law Designed to Stop “Passing the Trash”—and Why It Matters Now

When the U.S. Department of Education issued a new Dear Colleague letter on July 10, 2026, much of the attention centered on Title IX. But another federal law may prove just as important in the effort to protect students from educator sexual misconduct.

The Elementary and Secondary Education Act—better known as ESEA—contains a provision specifically intended to stop schools from helping employees accused of sexual misconduct move quietly into new education jobs.

The provision is not new. What is new is the Department’s announcement that it intends to examine whether states and school districts are actually complying with it.

That distinction matters. For too long, policies against “passing the trash” have existed on paper while gaps in investigations, employment records, licensing systems and hiring practices have allowed dangerous adults to remain in education.

ESEA, ESSA and the source of the confusion

ESEA is the principal federal law governing K–12 education. Congress originally passed it in 1965 and has reauthorized it several times.

In 2015, Congress reauthorized ESEA through the Every Student Succeeds Act, commonly known as ESSA. In other words, ESSA did not replace ESEA with an unrelated law. It amended and renewed it.

That reauthorization added an important student-safety provision: Section 8546, Prohibition on Aiding and Abetting Sexual Abuse.

Section 8546 applies to states, state education agencies and local school districts receiving ESEA funding. It requires them to maintain laws, regulations or policies prohibiting school employees, contractors, agents and education agencies from helping someone obtain another school job when they know—or have probable cause to believe—that the person engaged in unlawful sexual misconduct involving a student or minor.

This is the federal government’s clearest statutory prohibition against “passing the trash.”

What does “passing the trash” look like?

The phrase describes institutional practices that allow an employee accused of sexual misconduct to leave one school and obtain a position somewhere else without the next employer receiving the information it needs to protect students.

It does not always involve an administrator knowingly recommending a convicted offender. More often, it occurs through a series of quieter institutional decisions.

An investigation is abandoned after an employee resigns. A separation agreement limits what the district will disclose. Misconduct information is removed from a personnel file. A former employer provides only dates of employment. A licensing agency is never notified. A new district performs a criminal background check but never examines the applicant’s employment or disciplinary history.

Each decision may be treated as an administrative matter. Together, they can create a pathway from one group of students to the next.

That is precisely what Section 8546 was designed to prevent.

Why did the Department issue the letter now?

The Department says it has observed a recurring national pattern of credible reports going uninvestigated, institutions protecting employees over students, and suspected offenders being transferred to new schools or roles.

It also points to substantial weaknesses in state safeguards.

A 2022 Department of Education study found that, although every state required criminal background checks, far fewer required schools to examine an applicant’s complete employment and disciplinary history. As of the study period, 35 states lacked laws prohibiting the suppression of sexual-misconduct information in termination, resignation or severance agreements. Forty states did not prohibit that information from being expunged from personnel records.

Criminal background checks are essential, but they cannot reveal misconduct that was never reported to police, never prosecuted or quietly resolved by a school district. Preventing abuse requires systems that preserve and communicate relevant information before an employee reaches the point of a criminal conviction.

The Dear Colleague Letter signals that the Department will no longer look only at whether a state has adopted a policy. The Office of Elementary and Secondary Education says it will increase compliance monitoring and compare state laws and policies with available data to evaluate whether those protections are effective.

That is a potentially important shift—from checking a box to examining whether the system works.

ESEA and Title IX address different parts of the problem

The Dear Colleague letter invokes both ESEA and Title IX, but the laws serve different functions.

Title IX focuses on how federally funded schools respond to sex discrimination, including sexual harassment and sexual assault. When a K–12 school employee learns of possible sexual harassment, the district has an obligation to respond promptly and in a manner that is not deliberately indifferent.

Reporting an allegation to police or child protective services does not eliminate the school’s separate Title IX responsibilities. A district generally cannot abandon its own investigation simply because law enforcement is involved or because the accused employee resigns. It must also provide appropriate support to affected students and protect students and employees from retaliation.

ESEA Section 8546 addresses what can happen next: whether the institution conceals the employee’s history or helps that individual obtain another education job.

Together, the laws address two connected failures—an inadequate response to misconduct and the movement of suspected offenders between schools.

What will the Department investigate?

Along with the letter, the Department announced that its Office for Civil Rights (OCR) had opened 20 directed investigations into school districts. Those districts were selected because answers in their 2023–24 Civil Rights Data Collection submissions suggested they might not be handling staff-on-student sexual misconduct appropriately.

OCR will examine whether the districts accurately collected and reported data, maintained appropriate policies and procedures, and handled allegations involving employees in compliance with Title IX.

Separately, the Office of Elementary and Secondary Education will examine the adequacy of state and district measures intended to comply with Section 8546.

The Department has not publicly identified all 20 districts. More importantly, opening an investigation is not the same as finding a violation. The real test will be whether these reviews are thorough, whether findings are made public, and whether identified failures result in enforceable reforms.

What could change?

If this initiative is implemented seriously, states and districts may need to take a much closer look at practices that have historically fallen between departments and agencies.

That means examining whether investigations continue after an employee resigns; whether substantiated findings remain in personnel records; whether separation agreements conceal information relevant to student safety; whether misconduct is reported to licensing authorities; and whether hiring districts look beyond criminal background checks.

District leaders must also ensure that Title IX, human resources, legal counsel, school administrators, law enforcement and licensing agencies are not operating in disconnected silos. A report can be lost even when each office believes someone else is handling it.

The Department could require corrective action, improved data reporting, revised policies, additional training, reopened investigations and ongoing federal monitoring. Institutions that refuse to resolve established violations could ultimately place federal funding at risk, although termination of funding is an end-stage enforcement measure—not an automatic consequence of an investigation.

ESEA also limits the Department’s authority: it may not dictate the precise measures every state must adopt. States retain discretion in designing their laws and policies. But that discretion should not become an excuse for ineffective protections.

A law is only as strong as its implementation

The Dear Colleague letter is an important acknowledgment that educator sexual misconduct is not simply a series of isolated acts by individual offenders. It is also a systems problem.

Schools do not prevent “passing the trash” merely by adopting a policy with the right language. Prevention requires completed investigations, preserved records, honest references, meaningful licensing action, accurate data and leaders willing to place student safety above institutional convenience.

The letter provides notice. The investigations may provide leverage. But the outcome must be measured by more than announcements.

Are states closing dangerous loopholes? Are districts completing investigations after employees resign? Are hiring schools receiving the information they need? Are survivors supported rather than silenced? Are institutions being held accountable when they protect themselves instead of children?

Those are the questions NCSESAME will continue to ask.