-------- Original Message --------
Subject: 	Re: Query from CBS News re: university DNA testing policy
Date: 	Thu, 29 Oct 2009 00:47:13 -0400
From: 	William D Rich <rich@uakron.edu>
To: 	declan@cbsnews.com <declan@cbsnews.com>

Declan,

A few thoughts, having now read your article (with two updates) and
reviewed GINA.

First, the statement of mine that you quoted in your Wednesday 6:15
p.m. update was made before I had read your 5:10 p.m. update quoting
the University's statement of the rationale for policy.  Would you
mind clarifying that?  Right now, it looks like I read your report of
the University's statement and missed or ignored the fact that it
states the University's rationale.

Second, the link in your 5:10 p.m. update that's supposed to be to
Laura Massie's e-mail is actually a link to your e-mail to her.

Third, it's doubtful that Matt Williams would have standing to
challenge the DNA regulation in a law suit against the University.  In
order to have standing, he'd have to be able to claim and prove that
he had suffered injury, or is imminently threatened with injury, as a
result of the regulation's enforcement.  The regulation obviously
didn't prevent him from being hired as a lecturer this fall.  He
doesn't indicate that he was required to provide a DNA sample as a
condition of his employment.  Even if he were to apply to teach here
again, he wouldn't have standing unless the University actually
required him to provide a DNA sample.

Fourth, the University's rationale is that DNA identification may
eventually supplant fingerprint identification for purposes of
background checks, so the University needs to have complete discretion
to require DNA samples now and in the future, regardless of whether
DNA samples are actually necessary or even useful in conducting
background checks.  Moreover, the regulation does not limit the use of
the genetic information to background checks, nor does it contain any
privacy safeguards.  In these respects, it is far broader than is
warranted by its rationale.

Fifth, General Counsel Mallo is right that the rationale for GINA does
not require a prohibition on the gathering and use of genetic
information by a prospective employer for the purpose of conducting
criminal background checks, but the plain meaning of GINA rules out
the gathering and use of genetic information even for that purpose.
It remains to be seen whether the Courts will adhere to its plain
meaning or infer an exemption for the use of genetic information in
criminal background checks.  I'm not confident that the University's
position will prevail.

It's ironic that a University regulation that is far broader than its
legitimate rationale warrants may run afoul of a federal law that
itself is broader than is warranted by its rationale.

Finally, this policy raises the spectre of University employees
routinely being added to state and/or federal DNA databases even if
the results of their background check are negative.  This should be a
matter of no small concern for those who value civil liberties.

Bill