Prior Conduct as Factor in Admissions Jodi Adamchak Senior Associate General Counsel The University of South Florida 1

Different Issues  Criminal Background Checks  Prior Conduct Questions 2

Prior Conduct Questions (PCQ)  2008 – 54.5% of institutions asked a PCQ  Two ways to gather  Self disclosure  Criminal background check 3

PCQ…continued Acknowledgement: U.S. DOE 5/20164

Current SUS Practice  The Question:  CONDUCT (YES OR NO) Required  Are you currently, or have you ever been, charged with or subject to disciplinary action for scholastic (such as plagiarism or cheating) or any other type of behavioral misconduct at any educational institution? You do not need to disclose academic dismissal, suspension or probation for poor grades.  Have you ever been charged with a violation of the law, misdemeanor and/or felony (even if adjudication was withheld) which resulted in, or, if still pending could result in, probation, community service, restitution, a jail sentence or the revocation or suspension of your driver’s license (you are not required to include traffic violations which only resulted in a fine)? 5

The Process – SUS Most Common Process  In making the recommendation, the Assistant Dean of Students, Executive Director of OSRR may, among other things, consider:  The history of the applicant  The nature of the criminal activity  The seriousness of the offense(s) or misconduct  The likelihood of recurrence  The behavior since the crime or violation  Other evidence of rehabilitation and willingness to meet conditions for admission  The bearing, if any, the criminal offense(s) or misconduct for which the person was previously convicted will have on his/her fitness or ability to perform  The time which has elapsed since the occurrence of the criminal offense(s) or misconduct  The specific program related to the admission sought, i.e. academic program  Any information produced by the person, on his/her behalf, in regard to his/her rehabilitation and good conduct Acknowledgement: Non-Academic Admissions Clearance - OSRR - UCF6

The Process – SUS continued… Generally speaking, the University denies admissions to applicants who have been involved in the following situations:  Selling/distribution or manufacturing of drugs  Sex offenses/registered sex offenders  Violence  Students who are suspended from their previous institution unless their period of suspension is complete and they are allowed to return to their institution  Students who were expelled from any previous institution Acknowledgement: Non-Academic Admissions Clearance - OSRR - UCF7

The Process - SUS  (UCF)  (UF)  (FAU)  ewBoard (FAMU) ewBoard  (FGCU)  Admission-to-the-University-General pdf (FPU) Admission-to-the-University-General pdf  florida/offices/trustees/regulations/UWF-REG Admission-of- Applicants-with-Records-of-Criminal-Conduct-or-of-Misconduct-at- Educational-Institutions.pdf (UWF) florida/offices/trustees/regulations/UWF-REG Admission-of- Applicants-with-Records-of-Criminal-Conduct-or-of-Misconduct-at- Educational-Institutions.pdf 8

The Impact  Question itself often discourages applicants  40% of schools don’t admit if ongoing community suspension  Inconsistency – how to deal with:  “YO” – youthful offenses  Discussion programs  Sealing/expunging/Nolle Prosse  Disproportionate impact on minorities 9

Current Federal Guidance  Title VI – prohibits recipients of federal financial assistance from discriminating on the basis of race, color or national origin – intentional or “disparate impact”  Title VII – Employment  EEOC – “National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin.”  Basis for EEOC Investigation  Best practice to wait until after employment decision made  U.S. Department of Labor (DOL) – exclusion based on mere existence of criminal history – not acceptable.  U.S. Department of Housing & Urban Development (HUD) – “criminal records-based barriers = disproportionate impact on minority home seekers and may violate Fair Housing Act.” 10

Impact on Applicants Acknowledgement: U.S. DOE 5/201611

Minimum Considerations  At the minimum:  Committees  No blanket disqualifications  Considerations  Type of crime  Age  Risk  Wording of questions  Tailor to specific programs  Not require actual court records (burdensome) 12