The trend in higher education is clear: more risk management in personnel matters, more thorough scrutiny of new hires, more background checks.
But wherever there are checks, you’re apt to find balances. Legislation making its way through the city government in Washington runs contrary to broader national efforts among college leaders to rely on past offenses to predict potential problems and to more tightly control who gains access to an institution -- its campus and its resources, and potentially even its students.
The " Human Rights for Ex-Offenders Amendment Act of 2007” would, if approved, strictly limit the role that a person’s criminal background could play in employment, housing or enrollment decisions at 10 higher education institutions in the nation’s capital -- much to the chagrin of local college leaders who fear yet one more level of regulation, and a loss of institutional discretion.
Across the country, individual states have stepped up the pressure on colleges to keep their campuses safe. For example, in Virginia, a law went into effect July 1 requiring institutions to forward the information of admitted students to police for comparison with the state’s criminal information network and sex offender registry. The Wisconsin Board of Regents voted in December to require criminal background checks for new hires after much legislative flogging brought about by a February audit finding that 40 felons were employed by the UW System.
Legislatures or boards of regents have taken action to mandate background checks for university personnel in a number of states including Arizona and Kentucky, said Stephanie Hughes, an assistant professor of strategy at Northern Kentucky University who conducts research on the use of background checks in higher education and runs a company, RiskAware, offering background check services to colleges.
“Not only anecdotally, but quantifiably, it is definitely a trend in higher ed to be doing more background checks,” said Hughes. “I see D.C.’s effort as really running contrary to a technique of increasingly using risk mitigation techniques, but it’s not surprising, I’m not surprised that there has been this push-back.”
The D.C. bill -- an earlier version of which was vetoed by the former mayor, but which now, newly introduced, enjoys the support of the city’s new mayor, Adrian Fenty -- would amend the city’s Human Rights Act of 1977 to prohibit discrimination in the district based on arrest or conviction record, other than when a "rational relationship" between a position and a past conviction can be established. (Law enforcement, schools and other employers offering care for children or the elderly are among a select group of employers that would be exempt, but universities are not).
D.C.'s measure (which is also notable for one of its sponsors, the former Washington mayor Marion Barry, who had highly publicized criminal troubles of his own) would be the broadest such law in the country, say advocates, who see it as a necessary step in providing ex-offenders with the opportunities they need to gain access to the building blocks for security and, ultimately, success: education, housing and employment.
But university leaders are balking, arguing that the well-intentioned bill -- which would restrict a university from even asking a candidate for a job, admissions or campus housing to indicate any past criminal convictions on an application -- would sorely inhibit their ability to practice discretion and maintain a safe environment for students.
“The piece of the legislation that’s most worrisome to us is the application of the principle to enrollment decisions, meaning that if a university reviews a candidate’s application and discovers as part of that review the person is an ex-offender, the university can’t make any decisions on that application based on the ex-offender status,” said Sally Kram, director of public and governmental affairs for the Consortium of Universities of the Washington Metropolitan Area. Kram said in a Monday interview she also worries about implications for how universities place students in campus housing, and fears that the bill, if approved, would open the door to frivolous lawsuits on the part of rejected job candidates. "It seems that you might be able to ask the question [regarding a person's past convictions], but the unsuccessful candidate can bring a human rights case against you."
“We are not opposed to hiring, housing or educating ex-offenders. What we are opposed to is legislation such as this bill which substantially reduces a university’s flexibility in who it may hire, fire, house and allow on campus,” Kram said in her testimony against the bill before the D.C. Council last week. “Like hospitals, universities are unique environments charged with protecting vulnerable populations.... Indeed, an entire doctrine has developed to encompass the principle of requiring colleges to keep their students safe known as in loco parentis. Under this doctrine, universities are required to act as the parents when students are far from home. Largely discounted through the ‘70s and ‘80s, this principle is gaining currency under new laws.”
Patricia McGuire, president of Trinity University in Washington, added that the bill would provide another layer of regulation that would conflict with other legal burdens currently in place, including institutional obligations to comply with federal financial aid stipulations rendering students with drug convictions ineligible. "At one level, this proposal conflicts with a lot of other regulations, so it would impose an additional burden on colleges and universities in the district. I would oppose it on that level," said McGuire, who also went out of her way to praise the good intentions behind the bill, while criticizing its practical limitations.
"But regulatory burden is one thing. The second thing is that we have an extraordinarily heavy burden to provide for the safety and security of the students on campus," McGuire added, citing the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act and her own university's annual $1 million plus security budget -- within a total budget of $20 million.
"The law would tie our hands and place an enormous burden of proof on us to prove there's a 'rational relationship' between not wanting to hire someone and the job they're in when, in fact, in many of the jobs we hire people for, they have free run of the campus and they have a Trinity I.D. We don't say if we hire you to be the maintenance worker in the pool, you can't be in the cafeteria and you can't be in any other place."
But advocates for the legislation say that objections to the bill among higher education officials smack of exaggeration and even paranoia. Under the "rational relationship" clause, they argue, universities would maintain their discretion and wouldn't be forced to put anyone in danger. "The statute, as we hope it will pass, will give employers both the right and responsibility to make appropriate business judgments," said Judith Conti, executive director of the D.C. Employment Justice Center, a workers' rights organization. "If three years ago, someone was convicted of assault and rape, do you want them working in a dormitory or at a library late at night? Of course not. There's a rational relationship between the conviction and the job and the people that they would have access to. But if someone was smoking marijuana 15 years ago, why should that prevent them from being employed?"
The legislation, in its current form, would require employers to take into consideration eight factors when evaluating whether there is a rational relationship between a job and a conviction that would justify the employer's consideration of past offenses. These include the need to encourage the employment of ex-convicts, the specific duties and responsibilities required by the job, the time period that has elapsed since a crime and the age of the person at the time of a crime, the seriousness of the offense and "the legitimate interest of the public agency or private employer in protecting the safety and welfare of specific individuals or the general public and property."
Philip Fornaci, director of the D.C. Prisoners Project of the Washington Lawyers' Committee and an advocate for the bill, explained that while a college would not be able to request information on criminal background on a housing, admissions or job application under the new law, they would be able to request information about any offense that occurred in the past 10 years at the point they make a conditional offer of acceptance (more serious crimes, such as sex offenses, murder and assault with a deadly weapon, are exempt from the 10-year limitation, he said).
If, when considering that information only after making a conditional offer of acceptance, a college official is able to establish a “rational relationship” that would bolster an argument that a person’s background renders him or her an unsuitable candidate for say, a night-shift job at the library, or a slot in the freshman class, or a spot in a campus apartment, the university would be justified in saying sayonara without breaking the law. “What we want to do is isolate the criminal record issue, otherwise, it just gets too blurry, and we know that people won’t get an offer,” Fornaci said.
“Ordinarily, the way most of these pieces of legislation are written is that it prohibits out and out discrimination, so it prohibits them from saying ‘I will not hire, I will not rent to, I will not admit, anyone who has the following kinds of convictions,' no matter what," said Debbie Mukamal, director of the Prisoner Reentry Institute at John Jay College of Criminal Justice in New York. "But usually what these sorts of legislation require is that there be some kind of a relationship between the job that a person is seeking and the conviction record.... So the decision maker actually does have quite a bit of discretion, but it prevents out and out discrimination or categorical bans that can be very counterproductive.”
In 2004, Mukamal compiled a database of state laws governing the use of criminal background information in hiring for the Legal Action Center. She found that 14 states require public employers to hire individuals on a case-by-case basis, and five states do the same for private employers. Such laws do not typically expand to education and housing, she said, making D.C.'s proposed law particularly broad.
(Wisconsin, where the recent audit found that 40 felons were employed by the system, is one of those 14 states that generally prohibits discrimination based on criminal history other than when a conviction is judged to be related to a particular duty. Kram, of the D.C. higher education association, mentioned the Wisconsin situation in her testimony).
“We have approximately 60,000 ex-offenders in the District of Columbia,” said the D.C. Council member Harry Thomas Jr., who co-sponsored the bill with Barry, the former mayor who is now a council member (Barry is among those 60,000, having rather famously served time on drug charges). “It’s about making citizens whole who have lost their way, that was our focal point, to give them equal opportunities for housing education, employment, other things that make them productive citizens in the District of Columbia," Thomas said.
“We wouldn’t ask a bank to hire a forger or a counterfeiter; ... we wouldn’t ask day-care facilities to hire child molesters,” Thomas added. “But we want to get to the point of making sure that their prior offense is not unduly held against their opportunity to become whole.... We know from all statistical data that education is the one thing that can change the course of an individual's life; we hope that higher education will become a better partner in strengthening this bill."
But some charged with maintaining campus security aren't persuaded. Michael McNair, chief of police at American University, in Washington, said the logic behind the legislation is flawed. “None of us in the consortium [of Washington area schools] has a problem with giving people a second chance. But I think there’s a vast difference between giving someone a second chance and putting someone in a protected class,” he said.
All of the public safety directors in the local college consortium are "very concerned about the bill in terms of putting ex-offenders in a protected class,” McNair said. The bill’s supporters have good intentions, he said, but have proposed a bad solution. “It needs to be something that takes a common sense approach to the problem. This bill just doesn’t do that. It causes more problems than it solves.”
Catherine C. Bath, executive director of Security On Campus, a national nonprofit group dedicated to campus safety, said her organization "does favor background checks, so that kind of puts us in the position of favoring more discrimination, freedom to discriminate, for universities to set their own policies and go by their own policies."
"We're victim advocates," Bath said simply. "Not criminal advocates."