Legislative actions in several states and policy guidance from the Department of Education have framed the question of whether colleges and universities should (or must) perform criminal background checks (CBCs) on incoming students.
The case of Tiffany Williams v. the University of Georgia, amongst others, shows the potential liability of recruiting students with known criminal histories. Some states and agencies are pushing to “ban the box.” Already, standards of practice for background checks of staff are well-established, and broadening standards for student staff such as RAs are being debated.
This workshop offers an overview of current practices, future prospecting, and associated implications.
Topics include:
- How to establish a university-wide policy and administer it consistently.
- How to identify and define sensitive positions.
- Determining how broad a check to perform – credit histories, state checks, DOJ/FBI 50 state and federal checks.
- Is it appropriate/necessary to perform CBCs for residential life and other student-staff?
- What are the implications for performing CBCs on all incoming students? Is this a best practice?
- What role do sex offender registries play in this issue?
- Does the undertaking of CBCs create a legal duty for purposes of negligent hiring causes of action (and possibly negligent admission)?
- What due diligence is required once a CBC is performed?
- Does the federal update service create a continuing duty of care?
- Can IHEs recruit/hire those with criminal histories, and what are the ramifications?
- How do CBCs relate to questions about criminal history on admissions applications?
- What is the best practice for informing a subject that a CBC will be performed?
- What is an appropriate records retention policy for CBC results?
- Is there a difference between an arrest and a conviction with respect to CBCs?
- If we decide against CBCs for students, are other admission screening options viable?
- If we decide against admission screening, what liability risk could we be exposed to?
- Is there a middle ground where some level of screening/check can help to protect a campus but not have a disparate impact on applicants from marginalized groups?
- If we decide to ask screening questions, what kind of questions should we ask, and what should we avoid?
Learning Outcomes:
- Understand the trends around Criminal Background Checks in higher education.
- Explore the intersection of efforts to stop “passing the trash” contrasted with efforts to “ban the box.”
- Assess best practices with respect to admissions screening, for incoming and transfer students.
- Understand the risks and liabilities that can come from implementing checks and those that can arise from failing to do so.
- Reflect on check/screening practices in light of the duty of care.
- Appreciate disparate impact concerns as they affect applicants of color and applicants from other marginalized groups.