Criminal Background Checks for Students?

The Chronicle of Higher Education in an article datelined June 30, 2010, reports on program at the annual conference of the National Association of College and University Attorneys. Speakers discussed the advisability of asking for criminal background checks on students, usually as part of the admissions process. In the absence of formal policies on how to handle the information, or how to interpret it if received, at least one speaker counseled against background checks.

Most colleges and universities that have policies requiring criminal background checks began doing so either after a murder or other crime on their campus or a nearby campus. But as more institutions begin to require this information, it may become adopted more widely without considering the ramifications. The speakers at this conference wanted to raise the consciousness of their listeners. A recent survey showed that about 18% of colleges and universities perform a background check on "some sub-set of general applicants."

"One horrific event sets in motion what in my judgment is a punitive reaction, in the name of safety," Mr.[Barmak] Nassirian [an associate executive director of American Association of Collegiate Registrars and Admissions Officers] 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.

Dean Dickerson went on to note that while some may fear that requesting background checks could increase an institutions's liability, that it is not a simple equation. Admitting a student with a criminal record is not per se negligence, according to Dean Dickerson. It may then raise the question of whether failing to ask for background checks if there are warning signs in the record, might be some form of negligence. As more institutions begin to use this process, it may become the industry standard, and begin to look unreasonable if a college does not ask for a records check if there are warning signs in the record.

Here are Dean Dickerson's recommendations:

* Establish policies to consider students' records fairly and consistently, not simply focusing on a criminal record, but looking at the entire record;

* The policy needs to specify how to handle sealed juvenile records, news reports of arrests and convictions, and such things as reduced charges;

* The policy needs to specify how to communicate the decision to the applicant;

* The policy must cover privacy, controlling access to the criminal records in order to avoid liability for discrimination or defamation;

* The records need to be updated regularly, even after a student is admitted;

* Administrators who make admissions decisions must be trained and regularly re-trained by mental health and legal experts on how to use and interpret these records.