Experts Debate Fairness of Criminal-Background Checks on Students

June 30, 2010

More than 60 percent of colleges consider applicants' criminal histories in admissions decisions, but less than half of those have formal policies for how to do so, according to the results of a survey by the American Association of Collegiate Registrars and Admissions Officers that were presented on Wednesday to a group of college lawyers.

"Do you really want to have this stuff on the record if you don't know what to do with it?" Barmak Nassirian, an associate executive director of the registrars' group, asked legal experts during a heated debate on background checks that took place here at the annual conference of the National Association of College and University Attorneys.

Mr. Nassirian pointed to the unpublished survey, which his group conducted with the Center for Community Alternatives, an advocacy group for the rehabilitation of juvenile offenders, in arguing against what he called untrained, mechanical decisions to keep prospective students with rap sheets out of higher education.

Of the colleges that ask for criminal or disciplinary histories, most do so on applications for admission. The Common Application, for example, includes questions about convictions for any felonies or misdemeanors, as well as academic or behavioral misconduct at any educational institution. Colleges are particularly concerned by violent crimes and those related to alcohol, drugs, or sex, according to the survey, which polled about 250 institutions.

Still, only 38 percent of admissions staffs receive training on interpreting criminal records, Mr. Nassirian said. "The dean of enrollment doesn't know diddly."

At the University of North Carolina at Wilmington, several administrators evaluate students' criminal histories, Patricia L. Leonard, vice chancellor for student affairs there, told the group of lawyers. During admissions season there, a Campus Safety and Investigations Committee—with representatives from the police department, counseling center, and general counsel's office, among other divisions—meets weekly to review criminal-background checks on students whose application disclosures raise red flags, said Ms. Leonard. (The survey found that 18 percent of colleges conduct background checks on some subset of general applicants.)

Last year, the university asked 10 percent of its applicants to order criminal-background checks, and half of those did. They each paid $20 to a private company, which sent reports to the campus, as well as to the students.

The university denied all applicants who did not submit the checks but cleared for admission 92 percent of those who did. The students it turned away posed alcohol or drug, integrity, or safety risks, Ms. Leonard said. The committee had considered whether those students, if enrolled at the time of their infractions, would have been suspended or expelled. "Those are fair questions," she said, "for an institution to be asking."

Response to Tragedy

Such questions tend to arise in the wake of a tragedy. The University of North Carolina system introduced its policy of investigating some students' criminal backgrounds in 2007, three years after a student and a recently expelled student at the Wilmington campus were each accused separately of the murders of students. The alleged murder of a student by her classmate this spring at the University of Virginia prompted its president to propose checks of students' criminal records every semester.

"One horrific event sets in motion what in my judgment is a punitive reaction, in the name of safety," Mr. Nassirian said of what he sees as a pattern. Criminal records are often inaccurate or misleading, he said, and prior charges or convictions do not predict future behavior. The judicial system should decide whom to isolate, said Mr. Nassirian. "If a person doesn't belong on campus, what are they doing free in our society?"

Still, campuses are continually exploring new ways to meet public expectations and to try to keep students safe. Criminal background checks—and not just self-disclosures—may become the industry standard, particularly for residential students, said Darby Dickerson, dean of Stetson University's College of Law, and another presenter at the legal conference. "You need to keep your eye out on this," she said, "especially if you are in a state where other schools are doing it."

One common concern is that conducting checks exposes colleges to more liability. A lawsuit from a victim or victim's family, the thinking goes, will argue that an institution should have known to prevent a violent incident. But establishing negligence means proving that a college acted unreasonably, said Ms. Dickerson. "It's not per se unreasonable," she said, "to admit a student with a criminal record."

She recommended not simply considering students' criminal histories, but establishing policies to evaluate them fairly and consistently. Such policies should specify how to handle sealed juvenile records, news reports of arrests or convictions, and other tricky circumstances like reduced charges; how to disclose admissions decisions to applicants; and how to control access to students' criminal records, to limit accusations of discrimination and defamation.

Institutions should also consider updating their information with repeated checks, Ms. Dickerson advised. And legal and mental-health experts must regularly train the administrators who make decisions on which students to let in versus keep out, she said. "Just putting background checks in place I'm not really sure is going to do much for campus safety."