Published Online: March 16, 2010
Published in Print: March 17, 2010, as High Court Accepts Background-Check Case

High Court Accepts Background-Check Case

Federal Contractors Argue Violation of Privacy Rights; AERA Keeps Eye on Issue

In a case being watched by some in education, the U.S. Supreme Court agreed last week to step into a debate over whether extensive background checks for federal contractors violate an individual’s “informational privacy.”

In other action March 8, the justices declined to hear an appeal from the Boston Teachers Union over a state court injunction requiring union leaders to disavow the union’s call for a vote on a one-day strike.

In the privacy case, the justices accepted an appeal from the National Aeronautics and Space Administration over a government-wide policy of requiring extensive background checks for employees of government contractors.

Ruling in a challenge brought by contractors at the space agency’s Jet Propulsion Laboratory at the California Institute of Technology in Pasadena, the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held last June that the challengers were likely to succeed on their claims that the background checks violated their constitutional rights.

President George W. Bush, in the wake of the Sept. 11, 2001, terrorist attacks, issued an executive order known as Homeland Security Presidential Directive-12 that tightened identification policies for those with access to federal facilities and databases. That, in turn, led to a requirement that all federal contractors undergo background checks.

When the U.S. Department of Education implemented the policy, there was grumbling among some education researchers, who said the background checks were too intrusive. The American Educational Research Association sought to broker a compromise that would soften the policy. ("Education Dept.’s Stricter Background Checks Questioned," Feb. 21, 2007, and "Security Checks of U.S. Education Contractors to Change," April 2, 2008.)

“We presented recommendations and approaches that we believe met with a favorable response related to contract researchers,” said Felice J. Levine, the executive director of the AERA.

The NASA background checks were challenged by 28 contract scientists and engineers at the Jet Propulsion Laboratory, who said the process violated their rights under the Fourth Amendment and the federal Privacy Act.

A panel of judges from the 9th Circuit court held that the federal government had failed to justify the broad scope of the checks, which included questions about drug treatment and counseling and potentially about sexual matters. The appeals court allowed the challenge to go forward and authorized an injunction that exempted the 28 contractors from the background checks.

In its appeal to the Supreme Court in NASA v. Nelson (Case No. 09-530), the Obama administration said the ramifications of the 9th Circuit’s ruling were “potentially dramatic” and “cast a cloud” over background forms and processes that have been used for federal civil-service employees for over 50 years.

The high court will hear the case in its next term, which begins in October.

Strike Talk

Separately, a case turned down by the court involved a motion by the executive board of the Boston Teachers Union to put before its membership “for discussion, consideration, and debate” a one-day strike on Feb. 15, 2007.

The Boston school board asked the Massachusetts Commonwealth Employment Relations Board to investigate whether the union’s motion violated a state law barring strikes by public-employee unions.

Both the commission and a state court required the union to disavow the strike talk. The commission ruled that the talk of strike set in motion a move toward an illegal strike. A state trial court issued an injunction also calling for union leaders to disavow talk of a strike and assessing $30,000 per day in fines for failure to comply. The union never held a general meeting to authorize a strike, and no strike occurred.

In its appeal to the Supreme Court in Boston Teachers Union, Local 66 v. Commonwealth Employment Relations Board (Case No. 09-770), the BTU said that just because it is lawful for states to prohibit strikes by public employees, that does not mean labor regulators have “carte blanche” to restrict a union’s speech.

Vol. 29, Issue 25, Page 20

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