Court allows background checks for contractors

By Robert Barnes
Thursday, January 20, 2011; A04

It is reasonable and proper for the federal government to perform background checks of those who work under government contracts, a unanimous Supreme Court ruled Wednesday.

The court rejected a challenge from contract workers that their privacy rights were violated by open-ended questions about them or detailed queries about past drug use. The court said it was proper to extend to contractors the kind of background checks federal workers undergo.

"Reasonable investigations of applicants and employees aid the government in ensuring the security of its facilities and in employing a competent, reliable workforce," Justice Samuel A. Alito Jr. wrote for his colleagues. He said it did not matter whether the workers were employed by the government or were contract workers.

"The government's interest as 'proprietor' in managing its operations . . . does not turn on such formalities," Alito wrote.

The challenge came from 28 scientists and engineers at the Jet Propulsion Laboratory in Pasadena, Calif. It is run by the California Institute of Technology under a contract with NASA.

Since 1953, it has been mandatory for all potential federal civil service workers to undergo background checks. The 9/11 Commission recommended that the checks be extended to contract workers as well, and the longtime workers at the JPL faced an October 2007 deadline to submit to the background checks.

They went to court instead, and the U.S. Court of Appeals for the 9th Circuit granted them an injunction. It said a question about drug treatment and counseling went too far. The judges were also concerned about the open-ended questions on a form given to an applicant's references.

But the Supreme Court said the questions were reasonable and there were adequate safeguards to ensure the information was not released.

It said the federal government had ample reason to extend the background checks to contract workers such as those at the JPL, which tests technology for space travel and other important NASA missions.

"This is important work, and all of it is funded with a multibillion-dollar investment from the American taxpayer," Alito wrote.

Questions about drug use and treatment are pertinent, Alito wrote, because the government "seeks to separate out those illegal-drug users who are taking steps to address and overcome their problems."

Open-ended reference questions, he said, are common in both private and public employment.

Even though the opinion was unanimous - Justice Elena Kagan was recused, since as solicitor general she had asked the court to take the case - there was considerable disagreement.

Alito wrote that in ruling that the background checks did not violate a constitutional right to "informational privacy," the court was assuming that such a right existed. Justices have referenced such a right in cases since the 1970s, but at oral arguments in October, Justice Anthony M. Kennedy acknowledged that it remains "somewhat ill-defined or undefined."

Justice Antonin Scalia wrote a scathing concurrence in the case's outcome, joined by Justice Clarence Thomas. He said it would be "farcical" to believe that "a right deeply rooted in our history and tradition bars the government from ensuring that the Hubble telescope is not used by recovering drug addicts."

But he and Thomas would have decided the case by declaring flatly that the Constitution does not contain a right to informational privacy, and he castigated the other justices for not examining the question.

Scalia said lawyers for the scientists did not include in their briefs a constitutional reference for the right. "To tell the truth, I found this approach refreshingly honest," Scalia wrote. "One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution."

Since neither the scientists nor the government had challenged the notion of privacy rights, Alito said, it was unnecessary for the court to make a decision about their constitutional grounding.

The case is NASA v. Nelson .

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