North Dakota schools are allowed - but not required - to perform criminal background checks on employees, Attorney General Wayne Stenehjem says.

State school Superintendent Wayne Sanstead asked Stenehjem to explain a new law that requires FBI background checks for some professions.

In a legal opinion issued Monday, Stenehjem said the law allows public and nonpublic schools to request the criminal history of current and prospective employees as well as volunteers who have unsupervised contact with students. He said legislators removed language requiring the checks.

One section seems to bar the superintendent from approving a school unless the school has requested background checks, Stenehjem said. But a court likely would not uphold that requirement given the language in other sections, he added.

"This inconsistency … would best be clarified by legislative action," Stenehjem's opinion said. "In the meantime, it is up to local school officials whether requiring criminal background checks best serves their students."

The legislation was prompted by the September 2006 killing of Valley City State University student Mindy Morgenstern, 22, of New Salem. Officials said former Barnes County jailer Moe Gibbs, who was convicted in her death, was hired at the jail without an FBI background check.

Associated Press