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The Pennsylvania Supreme Court has ruled that the Pennsylvania State System of Higher Education's policy designed to prevent faculty members from hiding crimes and abuse against minors is not subject to collective bargaining.

The justices ruled 6-1 that the policy—which requires faculty members to submit to criminal background checks and to report to their university employers if they are arrested or convicted of a serious crime, or found or indicated to be a perpetrator of child abuse—constitutes an inherent managerial policy or prerogative that is not bargainable.

The high court's decision reversed a ruling by the Commonwealth Court that found the policy to be bargainable because the requirements it imposed "'directly relate to the terms and conditions of employment.'"

The Association of Pennsylvania State College and University Faculties had argued that its members should not be subject to the reporting requirements of the State System's policy because those requirements were adopted from the Child Protective Services Law, which, as of a July 2015 amendment, no longer applies to most university employees.

Justice Debra Todd, writing for the Supreme Court majority, said that because the policy implicates both the employees' working conditions and the State System's basic policy-making power, the question was whether its impact on one outweighed its impact on the other.

The high court ultimately determined that the policy's impact on the State System's basic policy-making power had to take precedence.

"We certainly do not discount the effect on the faculty of mandated disclosures of criminal history information and child abuse findings to a university employer," Todd said. "Indeed, such disclosures, as noted above, could lead to discipline and termination. The difficulty is that permitting bargaining over such disclosure mandates, and, thus, potentially narrowing or eliminating the requirements, could limit the universities' knowledge of such vital information, undermining the State System's ability to fulfill its essential obligation to protect minors―and, indeed, all students―who are on its campuses. Again, we view the safety of children to be a vital part of the State System's core mission of providing instruction and education. Mindful that the paramount concern in this inquiry is the public interest, we hold that the impact of the policy on faculty members' terms and conditions of employment does not outweigh the State System's interest in its foundational policy of protecting minors who are on campus and providing a safe educational environment."

Todd was joined in the majority by Chief Justice Thomas Saylor and Justices Max Baer, Christine Donohue, David Wecht and Sallie Updyke Mundy.

Justice Kevin Dougherty penned a dissenting opinion, arguing that the policy "does not concern a 'core aspect' of the State System's 'primary mission' of providing higher education."

"Implementation of the policy will have no effect, let alone a probable effect, on the State System's public purpose of providing undergraduate and graduate instruction," Dougherty said. "However, imposing background checks and reporting requirements on CPSL-exempt employees will significantly impact the terms and conditions of their employment, where tenure, reputation and employment could be irretrievably lost."

Counsel for the association, Jennifer Anne Nachamkin of Strokoff & Cowden in Harrisburg, could not be reached for comment. Counsel for the State System, Brian Gabriel of Campbell Durrant Beatty Palombo & Miller in Pittsburgh, also couldn't be reached.