Univer­sity fac­ulty back­ground checks to be re­viewed by court

Daily Times (Primos, PA) - - LOCAL NEWS - By Mark Scolforo

HAR­RIS­BURG >> Penn­syl­va­nia’s high­est court will de­cide whether the sys­tem of sta­te­owned 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 low­er­court 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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