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University faculty background checks to be reviewed by court

December 7, 2018

HARRISBURG, Pa. (AP) — Pennsylvania’s highest court will decide whether the system of state-owned universities trampled on faculty union rights by unilaterally requiring criminal background checks and reports of arrests for serious crimes within 72 hours.

The state Supreme Court this week accepted an appeal by the 14-school State System of Higher Education of a lower-court decision that said schools may only mandate the checks and arrest reports for teachers who are likely to encounter minor children not enrolled as freshmen or prospective students touring campus.

The policy, enacted in response to the Jerry Sandusky child molestation scandal at Penn State, was limited in an April decision by Commonwealth Court so that many professors would not be covered by it. The Supreme Court said it will review that decision and consider the schools’ argument that the policy “served the public interest in protecting minors.”

The universities have argued it was within their managerial powers to make all employees follow the policy, not just those who are likely to encounter children on campus. The unions say any such policy should be hammered out a part of contract negotiations.

“We are not saying that we don’t believe that there’s room for more background checks,” said Ken Mash, president of the union, the Association of Pennsylvania State College and University Faculties, said Friday. “What we are saying very clearly is that when you have a contract, that has to be negotiated.”

State system spokesman Kenn Marshall said the schools were pleased the court accepted the case.

“The health, safety and welfare of every individual who comes onto our campuses, whether a student, staff member or a visitor, is paramount,” Marshall said. “We believe the Protection of Minors policy and all of its components is an important part of our effort to provide safe, secure campus environments.”

The dispute involves separate background check laws passed by the Legislature in 2014 and 2015.

The state-owned universities moved to adopt the Protection of Minors policy in late 2014, a few months after a new state law was enacted requiring all school employees to give their employers state police background clearances and FBI criminal histories. The 2014 law applied the state’s Child Protective Services Law to higher education by making all school employees mandated reporters of suspected child abuse and requiring them to give written notice of arrests and convictions within three days.

The next year, Gov. Tom Wolf signed an amended law that limited the background check requirements to college and university faculty who have direct contact with children who are not enrolled into their schools, such as summer campers or high school students taking college classes.

Faculty members who only encountered minors as freshmen who had not yet turned 18 or as prospective students were no longer covered by the mandate. The union has said more than 5,000 teachers, or 90 percent of all faculty in the union, did not have to report arrests or complete background checks under the amended law.

A university system spokesman said Friday that about 87 percent of faculty members have already undergone background checks, noting some were conducted before courts limited the process.

The faculty union sought to open negotiations on the policy but the State System of Higher Education balked, asserting it had the power to require the background checks and notice of arrests as a matter of its managerial prerogative.

The union filed a complaint to the state labor relations board, which sided with the universities. That decision was appealed to Commonwealth Court, which in April said the checks and arrest reports should only apply to those who have regular contact with children, unless the two sides agree to a different arrangement.

“To collectively bargain over such topics for exempt employees would not unduly infringe upon the State System’s purported essential managerial responsibility of protecting students and minors on its university premises, especially in light of the fact that the General Assembly determined those employees are not required to have background checks,” Commonwealth Court Judge Dan Pellegrini wrote in April.

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