NASA Makes Convincing Case for Background Checks to High Court

Nick Fishman

What a difference a day makes.  As we posted yesterday, the U.S. Supreme Court heard arguments from both sides on the Ninth Circuit Court ruling that the background checks NASA subjected their contractors to was unconstitutional. Yesterday, I felt that both sides had valid arguments.  I said that NASA has every right to conduct an employee check, but felt that some of the employment screening criteria and information they asked for were out of bounds.

Today, I read the actual arguments made by both sides and not only have I changed my opinion on the case (I completely agree with NASA’s position), I am firmly convinced that NASA will prevail.  From a constitutional standpoint, it appears that there are no privacy protections that would stop NASA from performing the background checks that have come under fire.

Further, the characterization by the contractors that their work doesn’t affect national security or isn’t confidential in any way is immaterial when you consider their proximity to the Space Shuttle itself the people working at NASA whose work does involve national security.

The Wall Street Journal opined this morning that with the exception of Justice Sotomayor, the court seemed to accept NASA’s arguments.  See excerpt from their story below and expect a reversal of the lower court’s ruling soon upholding the right of employers to conduct background check.

According to this account by the LA Times’s David Savage, the justices gave a “skeptical hearing” to the 28 Caltech scientists challenging the government’s use of background checks. Caltech runs the Jet Propulsion Laboratory under a contract with NASA. Click here for the transcript of the arguments.

The scientists won at the Ninth Circuit, which held that questions violated their constitutional right to privacy.

According to Savage’s story, the justices all (with the possible exception of Justice Sonia Sotomayor) sounded as if the were inclined to uphold the background checks.

That said, they explored the limits of what the government should be allowed to ask. Justice Antonin Scalia, staying true to his “textualist” method of constitutional interpretation, said there was no such privacy right. “I don’t see it anywhere in the Constitution,” he told Dan Stormer, a Pasadena lawyer who represented the Caltech employees.

Chief Justice John Roberts and Justice Samuel Alito said they would not close the door to all such claims. “Isn’t there some right to tell the government: ‘That’s none of your business’?” Roberts commented.

Alito said he questioned whether the government could ask people to fill out forms revealing what they ate, what they read or whether they smoked cigarettes and to describe their sex lives. “Is that OK?” he pressed Neal Katyal, the acting U.S. solicitor general.

Probably not, Katyal agreed, but he urged the justices to rule that the government can ask open-ended questions of its employees and contract workers.

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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