UC Davis is latest institution to adopt a reference check policy to stem faculty misconduct

Last year, the University of Wisconsin System very publicly launched a new policy against "passing the harasser" on to unwitting institutions: It said it would disclose substantiated misconduct findings when contacted for employee reference checks. The system also put checks in place to guard against being passed someone else's harassers.

Around the same time, the University of California, Davis, more quietly established its own pilot policy on faculty reference checks. Experts say this kind of policy is still extremely rare in academe -- but that that will soon change.

A year into its pilot, Davis officials are ready to talk about it. Provost Philip Kass, who recently testified about the policy during a Congressional hearing on harassment in the sciences, said Wednesday that he and colleagues sought ways to prevent and otherwise address issues of sexual misconduct on campus. 

And they started thinking about how it's "possible for faculty to move between universities without the incoming university knowing about substantiated findings and discipline for any reason at a prior university."

K-12 school districts already are "well aware" of this problem, Kass said. But colleges and universities are another story -- even though examples abound of professors disciplined for misconduct moving on to new campuses to harass more students or colleagues. Ultimately, Davis adopted a new reference check program to "help prevent us from hiring faculty without the ability to evaluate such historic infractions."

The policy centers more on advance warning than disclosure. Job ads say that Davis will conduct reference checks into misconduct. Applicants for tenured and continuing lecturer positions must consent to having a reference check. Those who don't consent don't move forward as candidates.

Davis contacts the former institution or institutions of finalists who do consent, and asks whether there have been substantiated findings of misconduct that would violate the California system's Faculty Code of Conduct -- including sexual assault and harassment.

This process is separate from criminal background checks, which are governed by system policy and don't turn up internal findings of misconduct.

Davis will also share any substantiated findings of misconduct with institutions that ask about its own employees, past or present, provided those institutions present a signed waiver from the candidate consenting to the reference check.

Since last summer, 14 candidates for jobs at Davis have required reference checks. Nine have been completed, with 23 institutions contacted. Nineteen responses have been provided. None included information about candidates receiving discipline.

Were the institution to receive pertinent information, academic affairs personnel and the relevant dean and department chair would conduct an individualized assessment to see if the candidate was still eligible for the job in question. They'd consider the nature of the conduct, the length of time passed, discipline or corrective action taken, and the applicant's explanation.

Kass said that his office received no complaints from applicants or institutions about the policy this year. How many applicants have self-selected out of applying to Davis is impossible to know. But Kass told Congress during the hearing on harassment in the sciences that "potential applicants for faculty positions who have been disciplined, upon reading UC Davis's requirement for a signed authorization in order for their application to be considered, will be dissuaded from applying."

He added that Davis's reference check program "is an intervention for reducing the incidence and negative consequences of sexual harassment in both the STEM and non-STEM workforces, [for both] students and trainees."

Quinn Williams, general counsel for the Wisconsin system, praised Davis's efforts and said he was unaware of other institutions adopting similar policies.

Why? Institutions tend to fear the possible legal repercussions of sharing negative information about job candidates, he said. But Wisconsin's own study of the legal risks of disclosure found that fear to be "oversold." That's largely because the truth is strong defense against defamation claims.

Williams said that "we can't catch everything, and we don't think we can catch everything." But putting applicants "on notice early and often" that questions like this will be asked -- not only of them but of their prior employers -- is an effective and legally sound practice, he said.

What if institutions aren't forthcoming in their references? Williams said that Wisconsin makes clear that candidates who lie in the hiring process and are later found out can be dismissed for cause.

Kass said that academic affairs may consider extending this policy to tenure-track faculty members going forward. It didn't ask for the Academic Senate's approval of the policy, and Kass said that faculty applicants are not yet members of the Senate.

Still, general criminal background checks have historically proven controversial among professors. Some raise questions about the implications for rehabilitation, privacy and even academic freedom.

The American Association of University Professors takes the position that "blanket criminal background checks of faculty before appointment are a disproportionate invasion of privacy relative to the potential benefit," Hans-Joerg (Joerg) Tiede, senior program officer for academic freedom, tenure, and governance, said.

The association's relevant policy recommends that institutions should at the very least inform candidates of the proposed background check and get their written authorization, and give then give them a full copy of the report. No adverse action may be taken unless and until the employee has had an opportunity to contest or clarify its accuracy, the AAUP also says.

Institutional investigations, of course, are not criminal reports. And academic misconduct proceedings are not always perfectly executed. To that point, Tiede said the AAUP would "certainly be concerned if administrations reported findings of misconduct and impositions of sanctions in which they did not provide adequate academic due process."

Even so, Williams said he thinks this kind of reference check will spread going forward.

Kass does, too. "The concept of doing reference checks at universities is relatively new, and I suspect that some faculty may be concerned about the concept until they better understand it because it does have the capacity to exclude applicants from being considered for faculty positions, or may dissuade individuals from applying," if they don't want their references to be checked, he said.

Nevertheless, he said, "I firmly believe that as universities talk to each other" through professional organizations, "such reference checks will inevitably become institutionalized in their hiring practices."

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Philip Kass testifies before members of Congress on June 12.

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