Oklahoma State University’s new faculty background checks have some professors fearing the checks will disenfranchise qualified applicants and threaten academic freedom.
The OSU Faculty Council approved a plan to require background screening through OSU Human Resources and a third party vendor at its January meeting.
Jamie Payne, OSU’s vice president for Human Resources, said though all university staff hiring has required background checks, faculty checks are starting because of a 2016 state executive order. Payne said OSU’s Faculty Council approved a revised version of the policy Wednesday that includes an academic check. The administrative team, including OSU President Burns Hargis and other university vice presidents, is considering the policy, Payne said.
Oklahoma Governor Mary Fallin signed an executive order to Ban the Box, preventing state employers from asking whether an applicant had a felony conviction. Although the state intended it to offer more second chances, Payne said the policy change made OSU reconsider its vetting process.
“That was kind of our way of evaluating whether or not someone had a felony record,” Payne said. “Now that we do not have that question on our application, I think it’s even more important to do some screening for all employees. Not just staff, but faculty included, especially with faculty having so much exposure to students, and really, children.”
Sandefur, who will have a say in whether a hire is denied, said the policy is not meant to discriminate. However, he said it will force those overseeing checks to have common sense when evaluating each candidate.
“Just because you committed a felony in the past doesn’t mean we’re not going to hire you,” Sandefur said. “Everybody makes mistakes, not everyone commits felonies, but sometimes people have done things when they were younger that they regret, and you can’t hold it against them the rest of their lives.
“I think the people involved in these positions will make good judgements and make sure it’s not adversely affecting people of color or women or any other protected group.”
Griffin Pivateau, an associate professor in the Spears School of Business and a faculty council member, said he thinks the policy is misguided.
Pivateau, who teaches employment law and business law, said the Ban the Box executive order prohibits questions about felony convictions only on an application, not entirely throughout a candidate search.
“It’s designed to stop you from eliminating people too early in the process,” Pivateau said.
When Human Resources briefed college deans about the Ban the Box order, Payne said most deans decided to conduct background screening for faculty hires. The screenings weren't formalized under an OSU policy, and Payne said the plan is to standardize all screenings through Human Resources.
The Spears School of Business started running background screens for potential faculty three years ago. Lisa Fain, the director of operations for the Spears School of Business dean’s office, said the college anticipated a policy change.
“We started requesting background checks for tenure-track faculty approximately three years ago because we thought the university was trending towards doing them,” Fain said. “It was a good practice and fairly easy to do through university HR.”
The OSU Graduate College also started screening its applicants for graduate teaching and research assistants six months ago, and Payne said the policy’s final draft would include graduate assistants.
Only finalists for a position would be screened, and applicants would have to consent to the background check first, Payne said. Faculty checks would mirror those for staff, checking criminal, social security and sex offender databases, but Payne said some high-level financial positions would require an additional credit check.
Pivateau said he knows he's in the minority among faculty opinion. He said doing background checks only because everyone else is doing them is not good enough.
“I don’t think we’ve had any evidence that there’s a problem this is going to fix,” Pivateau said. “Secondly, if you’re going to put that policy into place, it should be narrowly tailored to only those areas where the need arises.
“One of the things that came up repeatedly at faculty council was, ‘What about somebody who drives students around? What if they have a DWI in their background?’ OK, yeah, that’ll work, but how do we fix that? Do we test everybody? No, we just focus on the person who’s going to be driving students around. This blanket approach is not proportional to the justifications that were suggested.”
Faculty and staff members aren't the threats that keep Pivateau up at night, he said. Despite scandals at Michigan State University and Penn State University involving university employees sexually assaulting students, which Pivateau said OSU’s policy would not have prevented, he sees a greater danger in students themselves.
“We have the fear, and not to disparage young men, but it’s young men,” Pivateau said. “We saw that in Florida (Feb. 14), it’s not people who have gone and earned their Ph.D. and are applying for a faculty position. … I would be much more afraid of a disgruntled student than a disgruntled professor, and that’s the next step.”
Human Resources uses Truescreen, which Payne said stores records on its secure servers, for background checks. OSU is near the end of its three-year contract with Truescreen. Payne said she and OSU are satisfied with Truescreen’s performance, but the contract will go up for new bids soon. The average check costs $28, but Payne said the cost can vary depending on how many states have to be checked or other factors. Checks typically come back to Human Resources within three days.
Human Resources weighs the frequency, severity and recency of any issues on a background check, Payne said. If the department recommends the applicant be rejected, Human Resources notifies Provost Gary Sandefur and the corresponding dean overseeing the hire.
Of about 15,000 checks, Payne said the department has recommended against hiring an applicant 10 times. Payne said she couldn’t give specifics about those 10 times because of privacy concerns.
Taking the final hiring decision away from other faculty doesn't sit well with Pivateau, and he said it conflicts with the traditional structure of a college.
“Because of the way that universities are organized, we rely on the knowledge of the faculty for selecting our colleagues,” Pivateau said. “If instead we’re going to outsource that function to HR or the dean or to the president, then I think that strikes at the heart of the academic freedom that we should be entitled to hire whoever we want to hire and not have it vetoed by someone up top for something that may have happened years ago.”
The proposal faced questions in the Dec. 12 faculty council meeting, specifically about a lack of information provided to hiring committees and department heads about any background checks. Scott Johnson, an associate professor in the department of management, said though there is universal agreement about keeping bad applicants out, he questioned what standards human resources would use to evaluate candidates.
“I had just wanted some clarity on what kinds of offenses would disqualify someone from a faculty position,” Johnson said. “There’s two conflicting values there. One is you need to have privacy. If someone is disallowed for some reason, that shouldn’t be publicly known. But at the same time, we don’t want the administration to be able to select people out for reasons that no one ever knew.”
Payne said the check’s results will not be shared with hiring committees and department heads in part to protect those individuals from discrimination claims if an applicant is disqualified.
Regardless, Pivateau said the new policy opens OSU up to more liability with a defined policy.
“Once you take on a duty, you have a duty to do that every time,” Pivateau said. “Now you can never hire someone without a background check. You have to determine is your check thorough enough? Is it enough to check for arrest records and driving records? Do you have to do a nationwide search, an international search? You’re taking on exposure to multiple liabilities.”
OSU primarily cares about felony charges with the new system, Payne said. The group evaluates applicants on a case-by-case basis, weighing how a past charge might impact a candidate’s performance on faculty.
“If a faculty member applies for a job and has a DUI from 10 years ago and they won’t be driving for the university, we’re likely going to let that slide,” Payne said.
This focus on felony charges stems from an Oklahoma statute that forces state employers to fire any employee who is convicted or pleads no contest to a felony. However, no statute keeps state employers from hiring applicants with felony records.
“We’re trying to uphold similar standards to our applicants which our employees are held to,” Payne said.
Although Pivateau said he thinks OSU’s policy is as neutral as possible and not intentionally discriminatory, its focus on felonies won’t have neutral effects.
“The fact is in the United States, black Americans are more likely to be stopped by the police,” Pivateau said. “They’re more likely to be searched by the police. They’re more likely to spend more time in jail waiting for a trial, and they’re more likely to accept plea deals that involve prison time.
“So if you have this ‘neutral’ policy … but in fact it has a disproportionate impact because you have more African-Americans who have been arrested and convicted than non-African-Americans, then that’s discrimination.”
A believer in second chances, Pivateau said convictions aren't meant to be life sentences. Pivateau said the policy might deter applicants with felony records from applying.
“People should have the right to redeem themselves, have the power to redeem themselves,” Pivateau said. “We may never even get that candidate because, ‘Well, I know I won’t pass the background check, so why even bother applying?’ So it’s going to force people out of this profession and into something else.”