Macalester AAUP Statement on Revised Criminal Background Checks

September 8, 2023

This statement summarizes continuing concerns with the college’s revised criminal record check policy. The policy was revised in May 2023, although to our knowledge, no announcement about this revision has been made. A longer version of this statement was shared with members of the administration and the Faculty Advisory Council and is available upon request. 

1. Continued Concerns about the Transparency of the Origins of the Change in Policy

Initially, members of the administration stated that the college’s insurance provider required the college to adopt an ongoing record check policy to be able to renew our general liability insurance. More recently, however, there has been a shift: the claim has become that the college’s insurance broker states that we will need to have the policy to secure coverage. 

Shortly after the announcement of the policy change last fall, the Macalester AAUP chapter and faculty and staff members of the college requested documentation to show that changing the policy was a requirement for coverage. After several months, the administration provided portions of two application forms (or warranty statements). Those statements suggest that, to the extent that the college is required to have a record check practice, that it has latitude to how it structures the policy.

Neither of these warranty statements indicates a requirement for having a particular background or record check policy. Both are merely part of an application, similar to what many of us might complete for a homeowner’s insurance policy. The mere existence of items on a form does not indicate that they are a requirement for coverage. 

There is, however, the possibility that a warranty statement previously completed by somebody at the college stated something about the college’s practice of criminal record checks that was inaccurate. If that did happen, could that be the reason that Macalester has to change the policy to now do what the college said it had been doing? If so, the transparent response would be to say that is the reason. If it is not the case, then the College should produce  documentation that there is a requirement for ongoing record checks.

2. Concerns That the Policy Incorrectly Treats Faculty as At-Will Employees (and Implications for Ways to Improve the Policy)

A policy based on the idea that tenure-track and tenured faculty are at will employees has no basis to be enforceable. Once hired into a tenure-track or tenured position, faculty employment is governed by the Faculty Handbook, and employment is not at will. Yet, the policy as announced states that if a record check reveals certain criminal convictions, a faculty member could be terminated.

Presume that a tenured faculty member consents to a record check and the check reveals that the faculty member was previously convicted of a crime. If that faculty member’s transgression was not a part of their duties at Macalester, there may not be grounds to terminate that individual. The state, having found that person guilty, would have imposed a criminal sentence. If that criminal sentence did not involve incarceration or community supervision with severe restrictions, that individual would still be able to fulfill their institutional responsibilities. Furthermore, the state’s decision about punishment would imply that the individual continued to be fit to live and work in the community. If the individual had completed any criminal sentence and was not currently under correctional supervision, these considerations would be magnified. In short: the situation would be one in which none of the grounds for termination under the Faculty Handbook would apply.

Presuming that the college concluded that the individual still posed an additional liability risk, a more productive, legally defensible, and humane response than seeking termination would be for the college to work with the individual and any supervisors to develop a risk mitigation plan. 

If we can imagine mitigating risk without termination in a situation in which a tenured faculty member with a previous conviction cannot be terminated, we should also be able to imagine doing something similar for staff members or potential employees. Such a response would be more in-line with the college’s values and with the commitments that we have made to redressing the inequities that have resulted from systemic racism, including the overcriminalization of disadvantaged people and communities.

3. Macalester Has Substantial Legal Protections That Should Inform the Policy

Minnesota Statute 181.981 unequivocally states that an employee’s criminal record will not be admissible for liability if the record did not result in conviction (Subd. 1(3)) or if the duties of the position do not create a risk greater than the employee being in public or employed in general (Subd. 1(1)). The provisions of Subd. 1(3) mean that Macalester’s policy could refer only to convictions (not arrests, charges, or pending charges) without creating additional liability risk for the college. The provisions of Subd. 1(1) mean that there may be positions at the college for which having a criminal conviction could pose no or minimal risk (and for which mitigation measures as suggested above could suffice). Courts in Minnesota have also repeatedly upheld the principle that merely hiring or retaining an individual who has a criminal record does not create liability for employers.

4. While the May 2023 Policy Revision has Some Positive Changes, It Also Introduced Additional Shortcomings

The policy has changed to state that certain convictions “may” (rather than “will typically”) result in the withdrawal of an offer of employment. In addition, the revised Q&A document clarifies that the college will review the last seven years of record check results (which is in line with the evidence-based best practices). Both changes improve on the policy as initially circulated, although moving the language about the seven-year time frame into the policy would strengthen those protections, as would limiting requests for information to a third party vendor to that time frame. 

Other changes (and non-changes) to the policy point to continued shortcomings. Despite a recommendation to remove language under the heading “Relevancy of Convictions” relating to charges, that language has not only been retained but has now been incorporated into that section to state: “A conviction, charges, or pending charges will not automatically preclude…” (replacing “A conviction will not automatically preclude….”). If the policy were limited to just convictions, it would give the college full protection of liability under Minnesota law. Adding “charges or pending charges” suggests that having been charged with a crime could preclude an individual from employment consideration. An individual charged (but not convicted) has not been found guilty (and  we all have acknowledged  that criminal charges are influenced by systemic racism and other biases).

Similar concerns are raised by a change that clarified the meaning of an ambiguous term (“encounter with law enforcement”) but did so in an overly expansive way. The policy now reads “If an employee is convicted of a crime, charged with a crime or has a pending criminal charge…,” they should provide notification to Macalester. Simply put: a charge or pending charge does not prove that a person engaged in the alleged behavior and, accordingly, Minnesota law says that information about the charge or pending charge cannot be used in a suit against the college for negligent hiring or retention. Including that language raises the risk that an individual who has not been tried may suffer an adverse employment outcome, violating the cherished principle that we presume people are innocent until proven guilty.

5. The Policy Continues to Include Problematic Grounds for Withdrawal of Employment 

The policy allows withdrawal of an offer of employment if something in the record “possibly impugns the reputation of the college.” The language is vague and subjective and allows decision-makers to exclude candidates even if their actions would pose no threat to safety or security. This clause also runs afoul of guidance from the AAUP which has deemed damage to the reputation of an institution as an inadmissible ground for termination.

6. There are Several Items that Remain Ambiguous that Could Be Clarified Easily or that Incorporate Overly Broad Language that Could be More Specific while Still Protecting Macalester

Without detailing each point in the policy, we note that there remain ambiguous phrases that offer little guidance to managers, applicants, and staff and faculty at Macalester. Examples include references to “successful” or “not successful” background checks (without defining success), an applicant’s duty to “disclose relevant information” (without identifying what information is relevant), and statements about how the recurring record checks will be interpreted by “guidelines provided by this policy” (without addressing the specific guidelines that will be used or how they will be adapted to retaining, rather than hiring). In addition, the policy language does not reflect representations given by members of the administration that there are some convictions for crimes that would not be of interest to the college (for example, convictions related to protest activities). 

To conclude: we understand the concerns that the college has about liability for negligent hiring and retention. Yet allowing those concerns to dictate our practices without considering ways that we can mitigate the real harms of excluding people from employment who have been caught in the net of criminal law enforcement and punishment would have Macalester contributing to, rather than seeking to reduce, injustice. We should make use of the protections that law currently affords us to do what we can to address the ongoing harms that people who have been subjected to criminal prosecution face even after having charges dropped or after completing any criminal sentence. We also must not allow those concerns to interfere with the commitments that we have to faculty and staff already at the college.