University Backs Away From New-Hire DNA Testing

(AP / CBS)
The University of Akron is backing away from a controversial new policy, which appears to be the first in the nation, saying that new hires can be DNA tested as part of a background check.

William Rich, the vice chairman of the Ohio university's Faculty Senate, said late Thursday that the administration was now willing to remove references to DNA testing from its background check policy.

As CBSNews.com reported last week, the university's board of trustees adopted a rule saying a "DNA sample for purpose of a federal criminal background check" may be collected from any prospective faculty, staff, or contractor. That policy, which includes no explicit privacy guarantees, appears to violate a federal law that takes effect on November 21 called the Genetic Information Nondiscrimination Act.

Rich, a law professor at the University of Akron who teaches constitutional and criminal law, said that the university's general counsel, Ted Mallo, sent a letter to the Faculty Senate recommending that the DNA sampling language be deleted and replaced with this sentence: "The candidate may be required by the law enforcement agency to provide additional information which is needed by the law enforcement agency for purposes of conducting the criminal background check."

As recently as last week, Mallo had defended the new policy as completely legal.

During a Faculty Senate meeting on Thursday afternoon, Rich introduced a resolution saying the policy "poses a serious threat to the personal privacy of university employees," which the group unanimously approved. Rich says he believes the DNA testing rule is far broader than necessary, in part because it "does not limit the use of the genetic information to background checks."

A spokeswoman for the University of Akron, Laura Massie, did not respond to a request for comment on Thursday.

The College and University Professional Association for Human Resources, or CUPA-HR, believes that the University of Akron's policy is a first. Massie previously said that no job applicants had been DNA tested so far.

Here's the text of the Faculty Senate resolution:

Whereas, The University of Akron's Board of Trustees recently adopted regulation 3359-11-22, paragraph (B)(3) of which provides that, "at the discretion of the university of Akron, any applicant [for employment] may be asked to submit fingerprints or DNA sample for purpose of a federal criminal background check";

Whereas, This regulation was adopted without consulting the Faculty Senate;

Whereas, Regulation 3359-11-22(B)(3) is of doubtful legality insofar as it would allow prospective employees to be required to submit DNA samples;

Whereas, The exercise of complete, unstructured discretion authorized by regulation 3359-11-22(B)(3) invites abuse and risks legal liability;

Whereas, Regulation 3359-11-22(B)(3) is far broader than is warranted by the University's legitimate interest in providing a safe environment for its students, employees, and campus visitors;

Whereas, Regulation 3359-11-22(B)(3)'s authorization of DNA sampling is unneeded at this time because the Federal Bureau of Investigation does not use DNA to conduct routine background checks;

Whereas, Regulation 3359-11-22(B)(3) poses a serious threat to the personal privacy of University employees, not least because of the likelihood that DNA records submitted to the Federal Bureau of Investigation will remain its database;

Whereas regulation 3359-11-22(B)(3) threatens to impede the University's efforts to recruit well qualified employees; and

Whereas the adoption of regulation 3359-11-22(B)(3) has brought and probably will continue to bring adverse publicity to the University, which impedes the University's efforts to communicate effectively the many positive developments at the University; therefore, be it

Resolved, That the Faculty Senate respectfully request, and does hereby request, that the Board of Trustees reconsider its adoption of regulation 3359-11-22(B)(3).



Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com and can be followed on Twitter as declanm. You can bookmark Declan's Taking Liberties site here, or subscribe to the RSS feed.
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    Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.