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The Journal of Correctional Education 67(2) • September 2016
35
College Admission Policies for
Ex-Offender Students: A Literature
Review
Bradley D. Custer
Abstract
As student affairs administrators are increasingly scrutinized for their role in ensuring
the safety of college campuses, a resulting trend has emerged. Admission policies
that screen applicants based on prior felony convictions are employed as a risk
management strategy to create a safer campus. This article is a review of the available
research and case law concerning the purpose and trends of these special admission
policies, their effectiveness, and their legal foundations. Findings illustrate that despite
an increase in policy implementation, there is little evidence to support the effectiveness
of these policies in improving campus safety; furthermore, their legal standing is
uncertain. Correctional education professionals will benefit from an awareness and
discussion of these trends in college admission practices in order to assist and advocate
for transitioning ex-offenders.
The Special Admission Process: Purpose and Trends
The purpose of the special admission process, often called the felony review
process, is to explore a prospective student’s criminal history to predict future
misconduct. The way the special admission process is administered is largely at
the discretion of administrators at each institution of higher education (IHE), but
both Dickerson (2008, 2010) and Langhauser (2001) have described models of
practice. Current trends call for a committee of administrators, including those
from student conduct, admissions, law enforcement, counseling, legal counsel,
and the faculty, to review application materials of those students who admit
past convictions on applications. The committee evaluates the information on
The Journal of Correctional Education 67(2) • September 2016
College Admission Policies for Ex-Offender Students Bradley D. Custer
36
the seriousness or severity of harm caused, the date and nature of the crime,
patterns of misconduct, punishment served, and evidence of rehabilitation and
responsibility acceptance. Applicants may be denied admission if their history
shows an ongoing propensity for violence or misconduct (Dickerson, 2008,
2010; Langhauser, 2001).
In perhaps the first study of felony review rejection rates, researchers at
the Center for Community Alternatives (CCA) studied the felony review process
of the State University of New York (SUNY) system, of which all 64 institutions
require the disclosure of criminal history information. They estimated that every
year, nearly 3,000 applicants disclose felony convictions, but nearly two-thirds
drop out before completing the admission process. For the applicants who
persist, admission rejection rates based on criminal history, among the 20 SUNY
colleges in the study sample, ranged widely from 0% to 83.1%, with 13 having
rejection rates under 10%. In other words, most of these IHEs rejected less than
10% of the applicants with prior felony convictions (Rosenthal, NaPier, Warth &
Weissman, 2015).
In 2009, the CCA and the American Association of College Registrars and
Admissions Officers reported on the trends of 273 IHEs and found that 66%
collected criminal history information during the admission process by requiring
self-disclosure or by conducting background checks (Weissman, Rosenthal,
Warth, Wolf & Messina-Yauchzy, 2010). More recently, a new study reported
in The Chronicle of Higher Education found that 70% of 1,400 undergraduate
institutions collected criminal history information during the admission process
(Mangan, 2015). With IHEs increasingly collecting criminal histories, “the final,
and ultimate, policy question is whether background checks actually will
enhance campus safety” (Dickerson, 2010, p. 28). Thus, the following sections
outline the available evidence documenting the effectiveness of special
admission policies.
Evidence of Effectiveness
The use of criminal history information “to screen prospective college applicants
grows out of legitimate concerns for public safety,” and some authors advocated
for at least some screening measures in the admission process (Weissman et al.,
2010, p. 3; see also Dickerson, 2010; Runyan, Pierce, Shankar & Bangdiwala,
2013). The following study’s findings supported the use of collecting criminal
history information.
Runyan et al. (2013) studied students at one university to determine if prior
crimes could predict future campus misconduct. The participating students
The Journal of Correctional Education 67(2) • September 2016
Bradley D. Custer College Admission Policies for Ex-Offender Students
37
admitted their criminal convictions on admission applications, or when surveyed,
disclosed having university disciplinary records and/or having had committed
crimes or behaviors that would have constituted conviction or disciplinary
action. The authors discovered, “students who engage in criminal activity before
college, whether they admit it on their applications or not, are more likely than
other students to engage in college misconduct” (Runyan et al., 2013, p. 4).
This indicated that a prospective student’s criminal history could be useful to
student affairs administrators to gage future campus misconduct; however, a
preponderance of research shows the process is not as effective as intended.
Evidence of Ineffectiveness
Although Runyan et al. (2013) found that precollege misconduct predicts
campus misconduct, they also concluded that the screening questions on the
admission application were insufficient to predict which students will commit
acts of campus misconduct. An important finding was “few of the students with
disciplinary action during college reported criminal behaviors at the time of their
application” (Runyan et al., 2013, p. 4). The authors suggested amending the
screening questions to solicit more honest responses from applicants to predict
more accurately which students would engage in future misconduct, noting that
extra support should be offered to those at risk in lieu of being denied admission.
Olszewska (2007) studied the campus crime rates at 89 large, four-year
institutions, six of which conducted criminal background checks on student
applicants. The crime rates did not differ statistically between the universities
that did and did not conduct criminal background checks, indicating uncertainty
that such practices were effective campus safety strategies.
Another study demonstrated that the large majority of crimes on campus
are committed by students with no prior criminal history. In response to two
murders committed by students with prior felony convictions in 2004, the
University of North Carolina (UNC) conducted a self-study of campus crime
statistics. Between 2001 and 2004, 1,086 students participated in criminal
incidents and 147 students participated in aggravated assault or higher
crimes. Of those 147 students, 21 students were found to have had prior
criminal histories, meaning 14% of the aggravated assault or higher crimes
were committed by students with prior felony convictions (University of
North Carolina, 2004). Pierce and Runyan (2010), however, noted that this
study “did not report the overall percentage of students with prior criminal
convictions, making it impossible to assess whether students with or without
prior convictions were more likely to commit these higher-level offences” (p. 58).
The Journal of Correctional Education 67(2) • September 2016
College Admission Policies for Ex-Offender Students Bradley D. Custer
38
Regardless, the UNC study documented that less than 2% of the crimes on UNC
campuses were committed by students with prior felony convictions.
Custer (2013a, 2013b) examined the special admission practices at one
Midwestern university by reviewing the themes and attitudes presented in the
applicants’ admission essays. Results of the essay analysis showed that the
admission process distressed and deterred some applicants, causing some to
withdraw or not to complete their applications. Some applicants expressed
feelings of embarrassment, fear, anger, being discriminated against, and other
negative reactions. Out of 55 applicants with felony convictions who applied
between 2009 and 2011, 47 were admitted and 34 enrolled as students.
Additionally, none of the 34 admitted ex-offenders violated university policies
while enrolled (Custer, 2013a, 2013b).
While prominent episodes of campus crime are reminders that crime can
happen anywhere, it has yet to be shown that the special admission process is
effective in reducing campus violence or misconduct (Custer, 2013a; Olszewska,
2007; Runyan et al., 2013). Without sufficient evidence of effectiveness, the legal
foundations of these policies deserve examination.
Legal Foundations of Special Admission Policies
Historically, federal law and the courts have viewed educators as the experts
on the selection of college students; therefore, the law has provided minimal
regulations for admission policies (Kaplin & Lee, 2006). An IHE may not have
admission policies that “unjustifiably discriminate on the basis of characteristics
such as race, sex, disability, age, residence, or citizenship” (Kaplin & Lee, 2006,
p. 753). Admission criteria must also be clearly defined, and applicants must
provide accurate information (Bunting, 1990; Martin v. Helstad, 1983). Admission
may be revoked when a student falsifies application information, as in the case
of Martin v. Helstad (1983) when a law student’s admission at the University of
Wisconsin was revoked after he did not fully disclose his criminal history as
required on the application.
Liability and Negligence
When ex-offenders enroll at an IHE, the implications for liability are uncertain.
The theory of negligent admission refers to legal liability when admitting students
who can reasonably be foreseen to pose a risk to the campus community. It is
based on the principle of negligent hiring that employers are liable for harm
caused by employees whose “propensity for violence” was foreseeable (Stokes &
Groves, 1996, p. 863). “An individual injured by another student’s criminal act
The Journal of Correctional Education 67(2) • September 2016
Bradley D. Custer College Admission Policies for Ex-Offender Students
39
might sue the university for negligent admission, arguing that she would not
have been injured had the school more thoroughly researched the perpetrator-
student’s background before offering admission” (Dickerson, 2010, p. 19).
Only one court case has addressed the liability of an institution for
admitting a student with known felony convictions. In 1972, Larry Campbell was
convicted of drug offenses and was sentenced to six years in prison. Released
early in 1975, Campbell enrolled in a special state-funded program for the
disadvantaged at State University College in Buffalo, New York. On June 9,
1976, Campbell raped and murdered a student, murdered a second student, and
severely injured a third (Eiseman v. New York, 1987).
The families of the deceased and the survivor sued the state of New York
on claims of negligence regarding Campbell’s admission and the college’s
failure to properly supervise him, among other claims. The trial and appellate
courts awarded damages to the families of the deceased, finding that the
college breached its duties to protect its students. The Court of Appeals of New
York reversed the decisions of the lower courts, finding that the institution was
not liable for Campbell’s actions based on his previous criminal history, thus
defeating the theory of negligent admission. The judge reiterated that Campbell,
as required by law, was released from prison, and the university did not assume
a heightened legal duty to restrict Campbell because of his alleged and assumed
foreseeable risk of harm (Eiseman v. New York, 1987). The court’s decision spoke
to the heart of the issue of students with criminal histories in higher education:
But even more fundamentally, the underlying premise that, once released,
Campbell by reason of his past presumptively posed a continuing,
foreseeable risk of harm to the community is at odds with the laws and
public policy regarding the release of prisoners. Consistent with conditions
of parole, an individual returned to freedom can frequent places of public
accommodation, secure employment, and if qualified become a student.
(Eiseman v. New York, 1987, p. 11)
The Eiseman case indicated that IHEs do not have an explicit duty to protect
the campus community from ex-offenders. Further, Smith (1996) warned that
assuming the duty to protect by screening applicants may warrant more legal
liability as it creates a contractual expectation for a safe campus. Langhauser
(2001) agreed, “Finally, and perhaps most important for college counsel, current
state law may not impose a legal duty on the college to inquire, and the college
should not assume a duty that it could be held to breach” (p. 6).
The Journal of Correctional Education 67(2) • September 2016
College Admission Policies for Ex-Offender Students Bradley D. Custer
40
Blanket Admission Policies
One case helped to define the limits of special admission practices. In 2010,
the Board of Trustees of Lake Michigan College adopted a policy that denied
admission to and prompted the immediate expulsion without a hearing of
individuals with any felony conviction or sex offense. A student who was listed
on the Michigan sex offender registry was subsequently expelled from the
college. The student, with the American Civil Liberties Union of Michigan, sued
the college on the basis that he was denied his due process rights. In 2011, the
suit was settled so that the student was permitted to register at the college after
a proper hearing by college officials revealed that he posed no risk of harm to
the campus. Lake Michigan College was also required to change its policies to
ensure the individual review of each student’s application or case before making
any judicial or admission decisions (Lake Michigan College, 2011). ACLU attorney
Miriam Aukerman reiterated:
We support our colleges and universities in their efforts to screen out
students who may pose a threat. However, a blanket ban that doesn’t take
into account a student’s risk level, age of the offense and rehabilitation
efforts is unfair and illegal. (Lake Michigan College, 2011, para. 3)
Conclusion
A process to prevent potentially dangerous ex-offenders from enrolling at
IHEs comes out of necessity for improved campus safety. Many IHEs have
implemented such policies, but there is no evidence of their effectiveness.
A review of case law demonstrates limited and conflicting legal foundations.
Campus administrators should consider these findings in the review of their own
admission practices to avoid unfairly denying admission to qualified applicants.
Similarly, administrators must assess their admission process to ensure it is
yielding actual campus safety outcomes. Additional research is needed to
evaluate the effects of special admission practices on campus crime and
misconduct on a national scale and to examine the effects of these policies on
the reintegration and rehabilitation of ex-offenders.
Implications
Along with the review of policies, trends, and legal frameworks, one additional
finding yields practical implications for the corrections community. Rosenthal,
NaPier, Warth, and Weissman (2015) discovered that most applicants with prior
The Journal of Correctional Education 67(2) • September 2016
Bradley D. Custer College Admission Policies for Ex-Offender Students
41
felony convictions did not complete the admission process, which they termed
“felony application attrition” and “found that this phenomenon, more than
explicit rejection on the basis of a felony conviction, closes doors to higher
education for people with criminal history records” (p. iv). Further, they estimated
that “for every one applicant denied admission because of a felony conviction,
15 such applicants are denied admission because of application attrition” (p. vi).
Therefore, the most harmful part of the felony review process for applicants is
the process of applying itself.
Corrections staff and educators can assist applicants through the college
admission process by being knowledgeable about the admissions policies of
colleges and universities. Often, the felony review process policy is buried on
the institutional website, and in some cases, the policy is not published at all.
Contacting the institution’s admissions office is the best way to learn what
questions about past criminal behaviors are asked on the application and
about the subsequent review process. Notifying clients that this process exists
before they apply is helpful; prospective students often report being shocked
that they must disclose their criminal history in detail to get into college (Custer,
2013b; Rosenthal et al., 2015). Advising applicants to complete the application
truthfully is critical, as lying will likely result in rejected or revoked admission or
expulsion. Perhaps most importantly, corrections personnel can provide letters
of recommendation documenting the applicant’s character, current support
systems, compliance with parole conditions, and compliance with mental health
or substance abuse treatment. This is what campus administrators will need
to weigh against the applicant’s criminal history before offering admission.
Applicants may need to be referred to legal aid agencies for assistance with
obtaining required criminal history documentation and for guidance on
disclosing criminal records, especially juvenile or other sealed records. Finally,
applicants need encouragement and support throughout this process, which
could take months to complete.
Many IHEs have exemplary programs to support ex-offenders, notably
community colleges (Spycher, Shkodriani & Lee, 2012). Although a few studies
exist, we need to know more about the successes and challenges of ex-
offenders in higher education so that we can build special programs and
services to meet their needs (Copenhaver, Edwards-Willey & Byers, 2007; Potts &
Palmer, 2014; Strayhorn, Johnson & Barrett, 2013). A collaboration of the
correctional education and higher education professionals is part of the solution
to supporting ex-offenders in college, beginning with the admission process.
The Journal of Correctional Education 67(2) • September 2016
College Admission Policies for Ex-Offender Students Bradley D. Custer
42
References
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Biographical Sketch
BRADLEY D. CUSTER is a student conduct administrator and a doctoral student in the
Higher Adult and Lifelong Education program at Michigan State University. He holds a
master’s degree in student affairs in higher education administration from Wright State
University.