A relatively new policy requiring background checks be done on employees in Pennsylvania state schools is now being challenged in court. The policy was formed in response to a sex abuse scandal at Penn State. In 1998, a parent reported football coach Jerry Sandusky to administrators for inappropriately showered with her minor son at Penn State. Sandusky continued coaching at the school without any apparent repercussions despite a campus police investigation of the incident and reports of other incidents made by school staff to administrators.
It was not until late 2011 that the coach was arrested and charged with 52 counts of sexual abuse of young boys. The case was based on decades of misconduct where Sandusky attracted young boys through a non-profit he established, where he groomed and abused them for years.
Allegations of a cover up to protect the popular coach at the expense of his young victims were rampant. In 2015, Pennsylvania’s State System of Higher Education adopted a new policy based on legislation passed in November 2014. The law required background checks be performed for employees and volunteers working in the state university system. It also required all employees, volunteers, and administrators to provide written notice if they are arrested for or convicted of certain misconduct involving children. This must be done within 72 hours of the event.
The law was revised in 2015 to cover a smaller number of employees. The law now applies only to educators teaching minors or college and university faculty who have direct contact with children not enrolled in their schools, such as summer camp students. This language would address the Sandusky crimes where minor children were bought to a university campus. However, the State System chose to keep its broader policy in place, which has been under intense scrutiny.
The Association of Pennsylvania State College and Universities Faculties (APSCUF) is a union that represents university faculty members and coaches. It challenged the State System’s choice to maintain a broader reporting system than is required by law, claiming the policy exceeded the State System’s authority. APSCUF states the issue should be the subject of contract negotiations between represented university employees and the State System. In contrast, the State System believes it has the right to adopt a policy that is crafted to protect minors from sexual abuse by any of its employees as part of its essential managerial responsibility to protect children.
The first challenge to the policy was considered by the state labor relations board that decided in favor of the union’s position. An appeal to the Commonwealth Court followed. The court upheld the original decision finding that schools can only mandate that background checks and arrest reports be required for teachers who are likely to encounter minor children not enrolled as freshmen or to prospective students touring campus. The case is now scheduled to be heard by the Pennsylvania Supreme Court.
MacMain, Connell & Leinhauser provides legal advice to public and private entities seeking to comply with legal requirements. We counsel clients in the areas of labor and employment law, school law, civil rights, and tort matters. To schedule an initial consultation, call us today at 484-318-7106 or complete an online form. Located in West Chester, Pennsylvania, we serve clients throughout Philadelphia and Chester County.