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TOPIC:
STUDENT CRIMINAL BACKGROUND CHECKS
INTRODUCTION:
Many colleges and universities are determining whether, when, and how to
conduct criminal background checks on some or all of their applicants and
students. In some cases, state law, an affiliation agreement, or an external
entity requires institutions to perform these checks. Where there are no such
requirements, however, determining whether to conduct student criminal
background checks involves a discussion of institutional, legal, and policy
concerns.
This NACUANOTE reviews circumstances under which student criminal background
checks may be required. In addition, the NOTE discusses whether and when to
conduct criminal background checks in the absence of a requirement, the
various types of background checks an institution may elect to conduct, the
nature and handling of information that may be derived from background
checks, and the benefits and risks of conducting criminal background checks
on students.
DISCUSSION:
I. Is the Institution Required to Conduct Criminal Background Checks
on Applicants and Students?
For purposes of this NOTE, the term "criminal background check"
refers to a formal review of official state, local, and/or federal law
enforcement records. Requirements to conduct student criminal background
checks can arise from state law, agreements with affiliated clinical or other
training sites, and potentially from the rules of external agencies.
State Law
Where state law requires an institution to conduct student criminal
background checks - most commonly for those involved in student teaching and
certain licensed health care professions - the breadth and depth of the
requirement is based on the language and scope of the legislation [1].
Counsel should thoroughly review their state law, as some statutes may not
have been written to specifically cover students or created with students in
mind [2].
A careful examination also will identify whether the law places the
responsibility for conducting the criminal background checks squarely on the
institution, or on the training site.
Affiliation Agreements
Many institutions have affiliation agreements with organizations acting as
clinical or other applied learning sites for student internships. In many
states, statutory law directs affiliates with whom the institution contracts
to perform criminal background checks on their personnel, including
"volunteers," which in turn, may include student trainees [3].
In addition, many affiliate policies require criminal background checks on
those students proposed for clinical, practicum, or internship training, as
well as other experience at the affiliate's training site.
Affiliates bound by state law to conduct criminal background checks on
student interns hosted at their site will not escape this obligation by
including in the affiliation agreement a requirement that the institution
perform the checks [4].
The affiliation agreement should specifically address this point. In
addition, counsel should consider including a statement in the agreement that
it will not indemnify the affiliate for any claims associated with the
affiliate's failure to perform the criminal background checks itself, even if
the institution also is conducting the checks [5].
External Entities
Training affiliates may assert that an external entity requires them to
conduct or obtain criminal background checks on students. When faced with
such an assertion by an affiliate, it is important to review the pertinent
policy, law, or regulation that is the purported source of the mandate. Two
such external policies are noted below.
Joint Commission on Accreditation of
Healthcare Organizations (JCAHO). JCAHO
is a non-profit organization responsible for the accreditation of healthcare
programs and organizations [6].
Despite the assertions or misapprehensions of some affiliate health care
organizations, JCAHO standards currently
do not independently require healthcare organizations to conduct
criminal background checks on staff, volunteers, or students in order for a
healthcare organization to attain accreditation. Only where law, regulation,
or organizational policy requires such checks on staff, students, or
volunteers does JCAHO expect them to be
conducted by the health care organization in compliance with that law,
regulation, or policy [7].
Association of American Medical Colleges
(AAMC). AAMC is a
non-profit organization responsible for providing medical education,
research, and patient care on behalf of medical schools, teaching hospitals,
and academic medical societies. Currently, AAMC does not require criminal
background checks on medical school applicants by its member institutions. In
Summer 2005, however, the AAMC
Executive Council endorsed the use of criminal background checks and recommended
that "medical schools require criminal background checks on all accepted
applicants [8]."
As a result, some medical schools have begun developing criminal background
check policies.
Other Entities. There are many
other organizations, associations, accrediting bodies, and regulatory
agencies to which a requirement to conduct criminal background checks on
students may be ascribed. In each instance, counsel should obtain and examine
the specific language of the requirement and assess the feasibility of
subjecting the institution to that requirement, along with the consequences of
not doing so.
II. What Legal and Policy Issues Should
Counsel and Administrators Consider When Determining Whether to Conduct
Criminal Background Checks on Applicants and Students?
Where state law, an agreement, or another entity does not require an institution
to conduct student criminal background checks, the institution nonetheless
may wish to consider conducting such checks on some or all applicants and
students as a matter of institutional policy. While there currently are no
definitive guidelines as to when criminal background checks are advisable,
various considerations are listed below.
Why Conduct a Criminal Background Check?
The possible objectives of a student criminal background check policy could
include:
- To provide safe student residence halls. By screening
for sex offenders and students with disqualifying assault or drug- or
alcohol-related convictions, an institution may learn of information it
determines should preclude a student from living in the residence halls.
If an institution chooses to screen for such offenses, it should
consider whether it would conduct checks only on residence hall
applicants or all students.
- To exclude students with disqualifying criminal
convictions from access to various academic programs. Many institutional
academic programs, such as teacher education and health sciences
programs, require externship experience and eventual licensure. As a
result of these requirements, a student with a disqualifying criminal conviction
may not be able to participate in the externship experience and/or
eventual licensure. If an institution wishes to limit entry into its
programs to students who are eligible for licensure, it must accurately
apply the standards of the relevant licensing agencies.
- To provide a safer campus environment. The
institution has an interest in protecting the campus community from
those students it anticipates may cause harm to faculty, staff, or other
students in their person or their property. A criminal background check
may elicit information that the institution can use to protect these
constituents.
These objectives will need to be weighed against the
benefits, costs, and risks of conducting criminal background checks, which
are summarized below.
When
to Conduct the Criminal Background Check?
In addition to the criminal history
questions presented on many institutional admission applications, an
institution may wish to conduct a criminal background check either prior to
or after a student's admission to the institution or academic program. Policy
concerns related to both are described below.
Prior
to Admission. Conducting a criminal background check prior
to admission raises several issues, one of which is when, during the admission
process, is the most beneficial time to perform the check [9].
An institution may want to delay the check until an admission decision is
made, but prior to applicant notification of that decision [10].
This reduces the number of background checks the institution needs to perform
and the resultant cost, paper work, and administrative follow up. If the
institution receives an affirmative criminal background check response, it
may want to notify the applicant of the result and provide him or her with an
opportunity to correct or clarify items identified in his or her background
before making a final admission decision [11].
After
Admission. Conducting a criminal background check after
admission raises the potential need to remove a person from the institution
or a particular academic program. The institution will have to determine
whether the decision to revoke a student's admission is reasonable, and then
be sure to follow institutional procedures for such revocations [12].
For the student, an institutional
decision to revoke admission may require a redirection of his or her
educational and career goals. Thus, the longer a criminal background check is
delayed, the more invested, personally and financially, in the institution
and/or the academic program a student becomes. This may increase the
likelihood of a dispute or even litigation should the student be disqualified
from the institution or program.
The length of time a student is
affiliated with an institution or academic program may necessitate a second
or even third criminal background check. In one state, the check for
healthcare employees is valid for only two years, after which time another
check must be performed for continuation of employment [13].
What
Type of Criminal Background Check May Be Conducted?
When deciding whether to conduct a student
criminal background check, the institution will need to determine the
appropriate scope of the check.
State
Background Checks. A review of state criminal records is
likely to yield only convictions that occurred within that state. Thus, for
an out-of-state applicant or student, an in-state criminal background check
may not be sufficient. At a minimum, the institution may want to require the
applicant or student to submit criminal background check results from all
other states where he or she resided [14].
Federal
Bureau of Investigation. If there is an applicable
statutory authorization, the institution may choose to request an FBI check,
which covers criminal conduct throughout the United States [15].
These checks are more accurate, but are also intrusive (requiring
fingerprinting) and costly, and it may take longer to receive the results.
Interpol.
If the institution has a number of international students, it may need to
solicit an international agency, such as Interpol, to conduct the criminal
background checks [16].
Who Performs the Background Checks and Who Assumes
the Costs?
As part of the decision-making
process, the institution should consider who among the parties involved will
perform the criminal background check and who will assume the cost.
Possibilities include:
Affiliated
Training Sites. Training sites may perform the background
checks, or, to off-load the expense and administrative burden of doing so,
may require that the affiliating educational institution perform the checks.
When entering into an affiliation agreement, counsel should contemplate their
institution's own willingness to perform the checks based on the following
considerations: the extent of the background checks required, the financial
and operational costs involved, and the requirements and availability of
other training sites [17].
Whatever is negotiated, the affiliation agreement should clearly delineate
which party will perform the criminal background check.
The
Student. The institution may wish to place the burden of
performing the criminal background check on the student or applicant [18].
The institution should specify the scope and method of the background check
and require that the results be sent directly to the institution from the
pertinent law enforcement agency to ensure record integrity [19].
The
Institution. A larger institution may be able to perform a
criminal background check itself with authorization from the appropriate
state law enforcement agency, if the state agency is willing to authorize or
deputize someone within the institution to do this. Such an arrangement could
prove to be more efficient and cost-effective, and provide the institution
with greater control over the records generated by the checking process.
Outside
Agency. The institution may choose to hire an outside
agency to conduct the criminal background checks. While this approach
relieves the institution of tracking the paperwork for the applicants and/or
students, it may involve significant costs. Thus, a cost analysis should be
part of the institutional decision-making process.
III.
Information Derived from Criminal Background Checks
Once the decision is made to conduct
student criminal background checks and the institution is in possession of
the information, administrators must assess the accuracy of the information
provided, determine disqualifying convictions, and resolve how the
information should be maintained. The following should be considered.
Accuracy
of Information
Criminal background check results may
not be accurate or complete. According to a Christian Science Monitor
article, "[a] private firm given a list of 120 people known to be on
probation found criminal records for only 56 of them." The FBI found
only 87 of the 120 criminal records [20].
Given today's mobile and global society, it may not be possible to obtain
complete criminal background information on an individual apart from his or
her own complete and honest disclosure. Conversely, students should be given
the opportunity to explain or correct information collected from the
background check that they allege is incorrect or outdated.
Disqualifying
Convictions
A criminal background check can
elicit many types of criminal convictions over varying time periods. Counsel
and administrators will need to determine which convictions disqualify an
applicant and/or student from the institution or academic program. The
following issues should be considered.
- Some states specifically identify convictions that
preclude a person's employment with access to certain vulnerable
individuals (e.g., children or the elderly). An institution might use
its state's list of disqualifying convictions as a model to create its
own such list to fit its individual circumstances or those of a
particular academic program [21].
- Where a student is identified with a disqualifying
conviction, the institution will need to determine if the student should
be permitted to remain enrolled in the institution or program, or
whether, as a result of a programmatic disqualification, the student may
apply for a different field of study.
- Many states have enacted periods after which a
conviction is no longer considered disqualifying. The institution will
need to determine if it wants to establish similar time frames for its
admissions and programmatic policies [22].
Storage and Disclosure of
Information Derived from a Criminal Background Check
Of particular importance to
institutions of higher education is how to maintain the information derived
from a criminal background check to protect a student's privacy from unwanted
disclosure. The following are suggestions for counsel and administrators.
Separate
Locations. Given the sensitive nature of criminal
background check information, it is imperative to place limits on who has
access to the information. Counsel should advise administrators to store the
information in a location separate from a student's academic record, such
that those with access to the student's academic record are not permitted
automatic access to his or her possible criminal record.
Strict
Guidelines for Disclosure. Only a limited number of
individuals should be allowed to have access to criminal background check
information, and it should be strictly on a need-to-know basis. Generally,
such records should not be available to individuals whose tasks involve
evaluating the student's performance because of the potential prejudicial
nature of the information [23].
Moreover, under the Family Educational Rights and Privacy Act (FERPA) [24],
such records may not be shared with students, faculty, or others generally,
but can be disclosed to and used by "school officials" for
legitimate educational or security purposes [25].
The institution may wish to notify
the student before disclosing the information. If the student has a
disqualifying conviction in his or her criminal background, the institution
could offer the student the option to proceed with the disclosure, change the
proposed training site, or possibly leave the program or institution.
IV.
What Are the Benefits and Risks Associated with Conducting Criminal
Background Checks on Students?
While the benefits and risks involved
in conducting criminal background checks on students necessarily will vary
from institution to institution based on state law, affiliation agreement, or
other entity or institutional culture and policies, some general
considerations are offered below.
Benefits
- Precluding the enrollment of an applicant to the
institution, or the assignment of a student to a particular training
site, may prevent harm to another individual. It also may protect the
reputation of the institution by avoiding any negative publicity that
could follow such an incident.
- Students found to have disqualifying criminal
convictions will be prohibited from occupying spaces that otherwise
could go to students with full eligibility for academic or training
programs requiring externships and/or eventual licensure.
- Conducting criminal background checks may provide the
institution with a defense to subsequent claims of negligent admission
or placement, breach of duty to protect or provide a safe environment,
or other causes of action. The institution may be able to assert that,
by conducting the criminal background checks, it exercised reasonable
care to prevent the harm [26].
Risks
- Performing criminal background checks exposes the
institution to liability for negligently performing the task and thereby
facilitating the injury of a third party by a student who was not
properly screened or precluded from having access to the injured person.
Having assumed the duty to perform the checks, in cases where no such
duty existed, may expose the institution to liability for negligently
performing or failing to perform that duty [27].
Similarly, the institution may face claims and criticism for failing to
warn others of a potentially dangerous student.
- The use of criminal background checks may unfairly
impact minorities. While most of the discussion in this area of law
relates to employee criminal background checks, some of the same
arguments could be made in the student context [28].
- Obtaining a criminal background check response which
reflects no convictions may create a false sense of security, given the
questions surrounding the accuracy and completeness of the background
checks, their limited scope, chance for errors, and variation of
offenses by states [29].
As with all institutional policy
decisions, the benefits and risks to the campus community must be weighed
against each other. Counsel can assist administrators to determine what
policies will best serve their institution.
CONCLUSION:
The decision to conduct criminal
background checks on students is complex. For some institutions, statutory
law or another entity may require that they be performed. Administrators,
however, may still have to determine who actually performs the background
checks. In the absence of any requirement, administrators should consider the
numerous factors that influence whether and when to conduct criminal
background checks, the various types of background checks an institution may
elect to conduct, and the nature and handling of information that may be
derived from background checks. Counsel can play an important role in
assisting administrators in making these determinations and going forward.
FOOTNOTES
RESOURCES FOR
COUNSEL:
NACUA Resources:
· The
University of Montana Employee Criminal Background Check Policy: Legal Issues,
David Aronofsky, Holly March, Megan Morris and Katie Bell, NACUA Annual
Conference, 2005
· Checking
New HIres at the Door: Criminal and Other Background Check Issues, Karen
A. Treber, NACUA Annual Conference, 2005.
· Criminal
Misconduct by Employees: Best Practices for Preventing and Deterring Criminal
Conduct, Toi Y. Carter, NACUA Annual Conference 2004.
· Strategies:
Dealing with the Campus Sexual Offender, Rick D. Johnson , NACUA Annual
Conference 2002.
· Use
of Criminal Convictions in College Admissions, Derek Langhauser, NACUA
Annual Conference 2000.
· NACUA
Background Checks Resources and Links
Additional
Resources:
· Association
of American Medical Colleges
· Fried, Gil B., Illegal Moves Off-the-Field: University Liability for Illegal Acts of
Student-Athletes, 7 Seton Hall J. Sport L., 69 (1997).
· Joint
Commission on Accreditation of Healthcare Organizations
· Langhauser, Derek, Commentary, Use of Criminal Convictions in College Admissions,
154 Ed. Law Rep. 733 (2001).
· LexisNexis Express Screening
(paid service).
· McCauley, Mary, Background Checks Rile Professors, Christian Science
Monitor 11 (Aug. 5, 2004).
· Parent, Christopher M., Personal Fouls: How Sexual Assault by Ball Players
is Exposing Universities to Title IX Liability, 13 Fordham Intell.
Prop. Media & Ent. L. J. 617 (2003).
· Stokes, Jerome W.D. & Allen W. Groves, Rescinding Offers of Admission When Prior Criminality
is Revealed, 105 Ed. Law Rep. 855 (1996).
· Sweeney, Thomas N., Closing the Campus Gates: Keeping Criminals Away
From the University - The Story of Student Athlete Violence and Avoiding
Institutional Liability for the Good of All, 9 Seton Hall J. Sport
L. 226 (1999).
· University
of North Florida Judicial Committee Request Letter - sent to students who
disclose a criminal history.
· Westlaw Public Records Database - Criminal
Public Records (paid service) - searchable by state.
College
and University Student Criminal Background Check Policies:
Health Professions
Education Professions
In General
AUTHOR:
Steve
Milam *
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