AdmissionsCriminal History – Whether Higher Education Institutions May Rescind a Student's Admission on the Basis of Criminal History Discovered After Enrollment – Whether the Maryland Fair Access to Education Act Applies to Juvenile Records ( 2021 )

COLLEGES AND UNIVERSITIES
ADMISSIONS – CRIMINAL HISTORY – WHETHER HIGHER
EDUCATION INSTITUTIONS MAY RESCIND A STUDENT’S
ADMISSION ON THE BASIS OF CRIMINAL HISTORY
DISCOVERED AFTER ENROLLMENT – WHETHER THE
MARYLAND FAIR ACCESS TO EDUCATION ACT APPLIES TO
JUVENILE RECORDS
February 18, 2021
The Honorable Jason C. Buckel
Maryland House of Delegates
You have requested our opinion on two questions about the
Maryland Fair Access to Education Act (the “Act”), which
generally prohibits institutions of higher education from asking
prospective students about criminal history on initial admissions
applications but allows those institutions to later inquire into and
consider criminal history in making “decisions regarding
admission and access to campus residency.” Md. Code Ann., Educ.
(“ED”) §§ 26-501 to -506. First, you ask whether the Act permits
an institution to rescind an enrolled student’s admission based on
criminal history that the institution discovers after the student has
enrolled at the institution, including to address concerns about
campus safety. Second, you ask whether the Act permits an
institution to inquire into and consider juvenile records as part of
the admissions process.
Before we can answer your first question about whether an
institution may rescind admission after a student has enrolled, it is
necessary to understand when the Act permits an institution to deny
admission based on criminal history or to rescind an offer of
admission, before enrollment, based on such history. According to
the Act’s language and legislative history, the General Assembly
apparently contemplated that an institution could adopt a two-step
admissions process as it relates to criminal history. The first step—
that is, the initial admissions application—must generally be blind
to criminal history. See ED § 26-503. If, however, an institution
chooses to ask about criminal history as a second step in the
process—that is, as a separate inquiry following the submission of
an application—the institution may then consider criminal history
when making decisions about admission, as well as about campus
residency, so long as it does not “automatically or unreasonably”
restrict a student’s admission on that basis. ED § 26-504. Although
the Act also requires an institution to develop a written process to
3
4 [106 Op. Att’y
determine whether there is a relationship between a student’s
criminal history and either campus residency or a specific academic
program, see ED § 26-505, such a relationship is not the only
ground related to criminal history on which an institution may deny
admission. Instead, that provision appears to impose an additional
requirement before an institution may limit an admitted student’s
options as compared to similarly situated students without criminal
histories (or may deny admission when an applicant seeks
admission only to a specific academic program), not to constrain
the institution’s discretion to deny admission to the institution more
generally for other reasons related to criminal history, such as
specific concerns about campus safety, when reasonable to do so.
The Act similarly allows an institution to rescind an offer of
admission, before the student has enrolled, based on criminal
history, provided the decision is neither automatic nor
unreasonable.
As to your first question about the rescission of admission
after enrollment, then, a decision to rescind a student’s admission
after enrollment may raise procedural concerns that we do not
address here, but it is nonetheless a “decision[] regarding
admission” under the Act. ED § 26-504(a)(1). As such, while we
doubt that the General Assembly intended this to be the primary
way for institutions to address concerns about criminal history,
especially given that the Act allows such concerns to be addressed
much earlier in the process, the Act does not prohibit an institution
from rescinding a student’s admission based on criminal history
discovered after enrollment, so long as the institution does not do
so “automatically or unreasonably,” ED § 26-504(b), and provides
whatever process is due to the student. That said, though what is
reasonable will depend on the circumstances, our sense is that it
will generally be more difficult to say that an institution’s decision
to rescind a student’s admission after enrollment is not
“unreasonabl[e]” as compared to other “decisions regarding
admission” made at an earlier stage in the process, and it will
become increasingly difficult to avoid a conclusion of
unreasonableness the longer the student has been enrolled at the
institution.
As to your second question, we do not think that the Act
applies directly to juvenile records, because an adjudication of
delinquency in juvenile court is not a “criminal conviction” under
Maryland law, and thus is not “criminal history” as defined by the
Act. ED § 26-501(c) (defining “criminal history” as “an arrest or
a criminal conviction”). Although a child under 18 years of age
may be taken into custody pursuant to the law of “arrest,” we doubt
Gen. 3] 5
that the General Assembly intended to treat arrest and adjudication
records differently or to refer to juvenile proceedings—which, by
design, are not criminal in nature—as “criminal history.”
Rather, the General Assembly apparently assumed that
juvenile records would remain confidential during the admissions
process based on other existing law. Consistent with that
understanding, our opinion is that Maryland’s juvenile delinquency
statute, which generally prohibits the disclosure of juvenile
records, see Md. Code Ann., Cts. & Jud. Proc. (“CJP”) § 3-8A-27,
prohibits an institution of higher education from inquiring into
juvenile records as part of the admissions process, especially when
that statute is read in conjunction with the Act. And although the
Act does not directly address whether an institution may consider
such juvenile records in the event that they are somehow divulged,
we think that the State’s policy to promote the admission of
students with criminal records, see ED § 26-506, was likely
intended to extend to students with juvenile records as well.
I
Background
A. Statutory Framework
The Maryland Fair Access to Education Act prohibits
institutions of higher education that receive State funds from using
an undergraduate admissions application “that contains questions
about the criminal history of the applicant.” ED § 26-503(a); see
also ED § 26-501(b) (defining “admissions application” as “an
individual application to enroll as an undergraduate student at an
institution of higher education”). 1 An exception, however, permits
institutions to use a third-party admissions application, such as the
Common Application, 2 even if that application contains questions
1
Although the “admissions application” provisions of the Act apply
only to undergraduate admissions because the term “admissions
application” is defined to include only undergraduate applications, it is
not immediately clear whether the other provisions of the Act—which
do not use the defined term “admissions application”—are similarly
limited to the undergraduate level or whether they apply at the graduate
level. Because you did not ask that question, we do not address whether
the rest of the Act was intended to apply at the graduate level.
2
As of August 1, 2019, the criminal history question was removed
from the “common” portion of the Common Application. See Jen Davis,
6 [106 Op. Att’y
about an applicant’s criminal history, but only “if the institution
posts a notice on its website stating that a criminal history does not
disqualify an applicant from admission.” ED § 26-503(b); see also
ED § 26-501(d) (defining “third-party admissions application” as
“an admissions application not controlled by the institution”). The
Act defines criminal history as “an arrest or a criminal conviction.”
ED § 26-501(c).
Although the Act generally prohibits institutions from asking
about criminal history on the initial admissions application, the Act
also provides that, “[s]ubject to § 26-505 of this subtitle, an
institution . . . may make inquiries into and consider information
about a student’s criminal history for the purpose of: (1) [m]aking
decisions regarding admission and access to campus residency; or
(2) [o]ffering supportive counseling or services to help rehabilitate
and educate the student on barriers a criminal record may present.”
ED § 26-504(a). In doing so, however, institutions “may not
automatically or unreasonably restrict a student’s admission based
on that student’s criminal history.” ED § 26-504(b).
Additionally, “[i]n deciding to deny or limit a student’s
admission or access to campus residency under § 26-504 of [the
Act], an institution . . . shall develop a process for determining
whether there is a relationship between a student’s criminal history
and campus residency or a specific academic program.” ED § 26-
505(a). That process must be set forth in writing and “include”
consideration of four factors:
(1) The age of the student at the time any aspect of
the student’s criminal history occurred;
(2) The time that has elapsed since any aspect of the
student’s criminal history occurred;
(3) The nature of the criminal history; and
(4) Any evidence of rehabilitation or good conduct
produced by the student.
ED § 26-505(b).
Finally, institutions that use criminal history as permitted by
the Act must “consider the State’s policy to promote the admission
of students with criminal records, including formerly incarcerated
Change to Criminal History Question for 2019-20 Application Year
(Aug. 19, 2018), https://www.commonapp.org/blog/change-criminal-
history-question-2019-2020-application-year.
Gen. 3] 7
individuals, to provide these students with the opportunity to obtain
the knowledge and skills needed to contribute to the State’s
economy.” ED § 26-506.
B. Legislative History
The General Assembly first adopted the legislation that would
become the Act during the 2017 legislative session. See H.B. 694
and S.B. 543, 2017 Leg., Reg. Sess. After the Governor vetoed the
bill, the Legislature voted to override that veto at the beginning of
the 2018 legislative session, and the Act went into effect on
February 11, 2018. See 2018 Md. Laws, ch. 2; see also Md. Const.,
Art. II, § 17(d) (providing that “[a]ny Bill enacted over the veto of
the Governor . . . shall take effect 30 days after the Governor’s veto
is over-ridden, or on the date specified in the Bill, whichever is
later”).
As originally introduced, the bill prohibited institutions of
higher education from making inquiries into or considering
criminal history during the entire “admissions process,” including
“the submission of an application to attend an institution of higher
education, all decisions made during the review of applications,
and the selection of applicants to matriculate.” H.B. 694, 2017
Leg., Reg. Sess. (First Reader) (proposed ED §§ 26-501(b), 26-
503(a)). Thus, institutions could only inquire into and consider an
accepted student’s criminal history to: (1) make decisions
regarding campus residency; (2) offer supportive counseling or
services to help rehabilitate and educate the student on barriers a
criminal record may present; or (3) decide whether the student may
participate in activities and aspects of campus life usually open to
students. Id. (proposed ED § 26-504(a)). Although institutions
could use a student’s criminal history for those limited purposes,
the bill specifically prohibited institutions from “us[ing] any
information about a student’s criminal history to rescind an offer
of admission.” Id. (proposed ED § 26-504(b)(1)).
Once a student was accepted, the original bill also established
a strict process to be used “[i]n deciding to deny or limit a student’s
access to campus residency or participation in a particular activity
or aspect of campus life.” Id. (proposed ED § 26-505). More
specifically, the bill required institutions to develop “an
individualized process for determining whether there is a direct
relationship between a student’s criminal history and campus
residency or a particular activity or aspect of campus life.” Id.
(proposed ED § 26-505(a)). A “direct relationship” meant that
8 [106 Op. Att’y
there was “a connection between the nature of the criminal history
of an accepted student and an activity or aspect of campus life that
would create an unreasonable risk to the safety or welfare of the
accepted student, other individuals on campus, or campus property
if the accepted student were authorized to participate without
condition.” Id. (proposed ED § 26-501(d)). The purpose of the
individualized process was to “provide an affected student with
reasonable notice and an opportunity to appeal a denial or
limitation of campus residency, an activity, or an aspect of campus
life.” Id. (proposed ED § 26-505(c)). Thus, under the original bill,
institutions were required to inform all students in writing of the
availability of the individualized process and their right to provide
evidence of rehabilitation or good conduct. Id. (proposed ED § 26-
505(d)).
During committee hearings on the bill, representatives from
the University System of Maryland, Johns Hopkins University, and
the Maryland Independent College and University Association
submitted testimony to express their concerns about criminal
history discovered after admission and enrollment. See Hearing on
H.B. 694 Before the House Appropriations Comm., 2017 Leg.,
Reg. Sess. (Feb. 14, 2017); Hearing on S.B. 543 Before the Senate
Educ., Health, and Envtl. Affairs Comm., 2017 Leg., Reg. Sess.
(Feb. 15, 2017). For example, they raised concerns about what
would happen if they accepted students with criminal histories into
specific academic programs that the students might be unable to
complete, such as teacher education or social work programs with
required field placements for which those students might not
qualify, or programs that prepare students for certain occupations
where a criminal history might pose an issue for licensure, such as
nursing. See id. (written testimony of University System of
Maryland). In addition, they raised concerns about campus safety,
emphasizing that they had an obligation to maintain a safe learning
environment free from sexual assault and sexual harassment. See
id. (written testimony of Johns Hopkins University and the
Maryland Independent College and University Association).
Following committee hearings, the bill was significantly
amended in the House. See H.B. 694, 2017 Leg., Reg. Sess. (Third
Reader). Rather than prohibiting the use of criminal history
throughout the entire “admissions process,” the revised House bill
only prohibited institutions (with limited exceptions) from using an
undergraduate “admissions application” that contained questions
about an applicant’s criminal history. Id. (proposed ED § 26-503).
Otherwise, the revised House bill allowed institutions to make
inquiries into and consider a student’s criminal history for the
Gen. 3] 9
purpose of, among other things, “[m]aking decisions regarding
admission.” Id. (proposed ED § 26-504(a)(1)). The revised House
bill also no longer expressly prohibited institutions from rescinding
a student’s offer of admission based on criminal history. Rather, it
prohibited institutions from “automatically or unreasonably”
restricting a student’s admission on that basis. Id. (proposed ED
§ 26-504(b)). But the revised House bill still required institutions
to set forth in writing “a process for determining whether there is a
direct relationship between a student’s criminal history and campus
residency, a specific academic program, or a particular activity or
aspect of campus life.” Id. (proposed ED § 26-505(a)). Notably,
“specific academic program” had been added to that list.
The bill was amended even further in the Senate. See S.B.
543, 2017 Leg., Reg. Sess. (Third Reader). The revised Senate bill,
for example, removed the ability of institutions to inquire into and
consider criminal history for the purpose of “deciding whether the
student may participate in activities and aspects of campus life
usually open to students,” shifting the focus to “decisions regarding
admission and access to campus residency.” Id. (proposed ED
§ 26-504(a)). The amendments also deleted the definition of, and
all references to, a “direct relationship,” leaving institutions to
“develop a process for determining whether there is a relationship
between a student’s criminal history and campus residency or a
specific academic program.” Id. (proposed ED § 26-505(a))
(emphasis added). 3 Once the two bills were reconciled, they passed
both houses of the General Assembly but were vetoed by the
Governor.
When the General Assembly returned for the 2018 legislative
session, debate ensued about whether to override the Governor’s
veto. In his veto message, the Governor had expressed concern that
the bill “could lead to situations where a school unknowingly
admits a student with a violent past or feels it must accept a student
with a criminal history for fear of running afoul of the law.” 2017
Md. Laws, Veto Messages at 4888. But Delegate McIntosh, a bill
sponsor, told the House of Delegates that the Governor’s veto
message had failed to consider the amendments that were made to
3
In fact, the Senate amendments permitted, rather than required,
institutions to develop a written process. Id. (proposed ED § 26-505(a)).
In reconciling the two bills, however, the House reinstituted the
requirement that institutions develop a written process, and the Senate
concurred. See Senate Floor Proceedings No. 62 (April 10, 2017); S.B.
543, 2017 Leg., Reg. Sess. (Enrolled Bill).
10 [106 Op. Att’y
the bill during the prior session. House Floor Proceedings No. 2
(Jan. 11, 2018). She explained that the amended bill did not
prevent institutions from collecting criminal history information;
instead, it merely “shift[ed] when [they] can do that” until after the
initial admissions application. Id. At that point, she said,
institutions, “upon review of the criminal record, may . . . deny
[applicants] admission,” repeating the word “may” twice for
emphasis. Id. Then, if institutions “decide that [certain criminal
offenses] happened so long ago that they still want to admit [those
applicants],” she explained, institutions “can deny them housing
and so on and so forth.” Id.
Delegate McIntosh also praised the “bifurcated admissions
process” that was in place at some institutions, under which
criminal history information was sent to the human resources office
and the application was sent to the admissions office. Id. That type
of process, she said, much like the amended bill, puts the
consideration of criminal history “at a point in the process where if
someone otherwise qualifies to go to [an institution] they may be
admitted, but it also gives the [institution] the right to deny that
application.” Id. In that way, she explained, the amended bill “very
much mirrors what we have done with State employment.” Id. 4
Along similar lines, Delegate McIntosh stated at one point that the
main reason she had introduced the bill was to eliminate the
deterrent effect that questions about criminal history had on the
decision of those with a criminal history to apply in the first place,
namely, that “so many people came up to that box” on the
admissions application and, believing an institution would not
admit them, “just took the application . . . and threw it away.” Id.
Finally, Delegate McIntosh clarified that the amended bill was not
“prescribing” what each admissions office must decide for
applicants with criminal histories. Id. To the contrary, even under
the amended bill, she said that it would remain within “the purview
of the [institutions to] choos[e] what students they want to admit.”
Id.
Similarly, in the Senate, Senator Conway, another bill
sponsor, emphasized that there are multiple “steps in the
admissions process.” Senate Floor Proceedings No. 3 (Jan. 12,
2018). She explained that the bill would only prevent institutions
from denying admission to applicants with criminal histories based
4
Several years earlier, the General Assembly had prohibited an
appointing authority from inquiring into the criminal record or criminal
history of an applicant for State employment until the applicant had been
provided an opportunity for an interview. See 2013 Md. Laws, ch. 160;
Md. Code Ann., State. Pers. & Pens. (“SPP”) § 2-203.
Gen. 3] 11
on an “initial look at the application,” and that institutions would
still “be able to make the determination whether or not [they] want
to accept these individuals into [the] institution.” Id. At the same
time, Senator Conway stated that the “admissions process”
extended to specific academic programs so that, for example, a
person convicted of hacking phones would not be accepted into a
cybersecurity program, and a person convicted of selling opioids
would not be accepted into a nursing program. Id. Before the final
vote, Senator Rosapepe summarized Senator Conway’s explanation
of the bill: “The Chairwoman says, ‘If that person is found to be a
danger, they won’t be let in.’ So, this is a good bill, it makes all of
us safer, and I am enthusiastic about voting to override the veto.”
Id. Ultimately, both houses of the Legislature voted to override the
Governor’s veto.
C. Procedural Considerations
The Due Process Clause of the Fourteenth Amendment can
also be implicated in admissions decisions at public institutions.
See U.S. Const. amend. XIV, § 1 (providing that no State shall
“deprive any person of life, liberty, or property, without due
process of law”). 5 To have a constitutionally protected property
interest in a benefit under the Due Process Clause, however, a
person must have “a legitimate claim of entitlement to it,” not
merely an “abstract need or desire” or “unilateral expectation.”
Board of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).
As a result, applicants to public institutions of higher education
5
The Due Process Clause does not apply to private institutions. See
Harwood v. Johns Hopkins Univ., 130 Md. App. 476, 484 (2000), cert.
denied, 360 Md. 486 (2000) (“Although the actions of public universities
are subject to due process scrutiny, private universities are not bound to
provide students with the full range of due process protection.”). Instead,
“[w]hen a student is duly admitted by a private university,” the Court of
Special Appeals has found that “there is an implied contract between the
student and the university that, if the student complies with the terms
prescribed by the university, the student will obtain a degree.” Id. at 483(internal quotation marks, alterations, and citation omitted); see also
Onawola v. Johns Hopkins Univ., 412 F. Supp. 2d 529, 532 (D. Md.
2006), aff’d, 221 F. App’x 211 (4th Cir. 2007). Thus, rather than ask
whether due process was afforded to a student whose admission is
rescinded based on criminal history, a Maryland court might ask whether
a private institution has “live[d] up to the conditions of the agreement it
made with a student” or has, instead, “acted arbitrarily and capriciously”
toward the student. Harwood, 130 Md. App. at 484.
12 [106 Op. Att’y
generally do not have a protected property interest in admission.
See, e.g., Lemon v. Labette Cmty. Coll., 6 F. Supp. 3d 1246, 1251
(D. Kan. 2014) (finding no property interest in transfer admission
to a nursing program). After all, such institutions have significant
discretion in choosing whom they want to admit as students. See,
e.g., Regents of Univ. of Calif. v. Bakke, 438 U.S. 265, 312 (1978)
(opinion of Powell, J.) (“The freedom of a university to make its
own judgments as to education includes the selection of its student
body.”). But, as to a student’s rights after admission, many courts
have assumed, without deciding, that students have a protected
property interest in their continued enrollment. See, e.g., Regents
of Univ. of Mich. v. Ewing, 474 U.S. 214, 223 (1985); Tigrett v.
Rector & Visitors of Univ. of Va., 290 F.3d 620, 627 (4th Cir.
2002); Henson v. Honor Comm. of Univ. of Va., 719 F.2d 69, 73
(4th Cir. 1983); Doe v. Loh, 2018 WL 1535495, at *5 (D. Md. Mar.
29, 2018). 6
Once a student has enrolled, there is often a question as to
whether a dismissal from the institution is disciplinary or academic
in nature. See Mahavongsanan v. Hall, 529 F.2d 448, 450 (5th Cir.
1976) (“There is a clear dichotomy between a student’s due process
rights in disciplinary dismissals and in academic dismissals.”). As
a general matter, when a student is dismissed for violating rules of
conduct, i.e., a disciplinary dismissal, the student is entitled to
notice of the charges and an opportunity to be heard by
disinterested parties. See Henson, 719 F.2d at 74. By contrast, a
student’s dismissal for failure to meet academic standards, i.e., an
academic dismissal, “calls for far less stringent procedural
requirements.” Board of Curators of Univ. of Missouri v.
Horowitz, 435 U.S. 78, 86-90 (1978). In that category of cases, a
hearing is not required; the student must merely be “fully
informed” of the institution’s dissatisfaction, and the dismissal
decision must be “careful and deliberate.” Id. at 85. Academic
6
There is also some question as to whether a protected property
interest arises where a student has accepted an offer of admission but has
not yet enrolled. Compare Martin v. Helstad, 699 F.2d 387, 389-90 (7th
Cir. 1983) (noting the district court’s holding that a property interest
arose based on the university’s offer of admission and the student’s
acceptance of that offer, and assuming such an interest existed for
purposes of deciding the case), with id. at 392 (Coffey, J., concurring)
(positing that “the right of a university to make its own judgments as to
the selection of its student body is so vital to the important concept of
academic freedom that a mere potential student enrollee . . . cannot, prior
to formal enrollment and matriculation, acquire a property right in
attending a particular university”). We do not resolve that question here.
Gen. 3] 13
dismissals are treated differently because they require “an expert
evaluation of cumulative information” and thus are “not readily
adopted to the procedural tools of judicial or administrative
decision-making.” Id. at 90. 7
In the few reported cases involving an institution’s decision
to “rescind” a student’s admission based on criminal history, the
institution did so because the student had allegedly failed to
disclose or misrepresented that criminal history when asked about
it. For example, in Fuller v. Schoolcraft College, 909 F. Supp. 2d
862, 876 (E.D. Mich. 2012), a student was terminated from a
nursing program “as a result of her criminal history and lack of
candor about it.” Because the termination “pertain[ed] to her
ability to function as a nurse and provide quality patient care,” the
court called it an “academic dismissal” and concluded that she had
been afforded due process when she was informed of the reasons
for her termination and the final decision was “careful and
deliberate.” Id. at 876-78. Similarly, in Martin v. Helstad, a law
school revoked the admission of a newly accepted student on the
grounds that his application “had failed to disclose his federal
conviction” and that his responses to the school’s inquiries
misleadingly “implied that his federal conviction was about to be
vacated.” 699 F.2d at 388. The court did not decide the type of
dismissal but stated that it was “colorably an academic dismissal”
and—assuming that a protected property interest existed—
concluded that the student had received due process when he was
given an opportunity to submit written materials prior to the
school’s final decision. Id. at 390-91. 8
7
Although the courts have been primarily concerned with procedural
due process in these cases, substantive due process has also been
implicated when there has been an allegation that the institution acted
arbitrarily and capriciously. See, e.g., Horowitz, 435 U.S. at 91-92.
8
Ultimately, “[t]here is no bright-line test for determining whether a
dismissal is academic or disciplinary in nature,” Fuller, 909 F. Supp. 2d
at 874, and “[t]he very nature of due process negates any concept of
inflexible procedures universally applicable to every imaginable
situation,” Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961).
You have not asked, and this opinion does not address, precisely what
process is due in any given situation, nor do these cases address the
situation where a student’s criminal history is properly disclosed and an
institution nevertheless rescinds the student’s admission based on that
criminal history.
14 [106 Op. Att’y
II
Analysis
A. Rescinding Admission
Your first question, as we understand it, is whether the Act
permits an institution of higher education to rescind a student’s
admission based on criminal history that the institution discovered
after the student enrolled. 9 To answer that question, we apply the
ordinary principles of statutory construction “to ascertain and
effectuate the intent of the Legislature.” Stickley v. State Farm Fire
& Cas. Co., 431 Md. 347, 358 (2013) (internal citation omitted).
We begin with “the normal, plain meaning of the statute,” State v.
Bey, 452 Md. 255, 265 (2017) (internal citation omitted), reading
words with “their natural and ordinary meaning,” Davis v. State,
426 Md. 211, 218 (2012). We do not read statutory language “in a
vacuum,” but rather in “the context of the statutory scheme to
which it belongs, considering the purpose, aim, or policy of the
Legislature in enacting the statute.” Lockshin v. Semsker, 412 Md.
257, 275-276 (2010). If the language “is unambiguous and clearly
consistent with the statute’s apparent purpose,” then the inquiry
ordinarily ends there. Id. at 275. If the language is ambiguous,
however, then we look to other indicia of intent, such as the
legislative history, including “the derivation of the statute,
comments and explanations . . . during the legislative process, and
amendments proposed or added to it.” Witte v. Azarian, 369 Md.
518, 525-26 (2002).
We thus start with the language of the Act. Although that
language makes clear that an institution generally “may not use an
admissions application that contains questions about the criminal
history of the applicant,” ED § 26-503, it also makes clear that,
otherwise, the admissions process need not be blind to criminal
history. Rather, the Act provides that, “[s]ubject to § 26-505 of this
subtitle, an institution . . . may make inquiries into and consider
information about a student’s criminal history for the purpose of . .
. [m]aking decisions regarding admission and access to campus
residency,” though the institution “may not automatically or
unreasonably restrict a student’s admission based on that student’s
9
You have asked specifically about the discovery of a student’s
criminal history after enrollment. But, to be clear, regardless of whether
an institution is aware of criminal history at the time of admission or
subsequently discovers it, the institution’s use of that information is
subject to the Act’s requirements.
Gen. 3] 15
criminal history.” ED § 26-504. 10 That rule, however, is
complicated by the fact that it is expressly made “subject to § 26-
505,” which, in turn, states that, “[i]n deciding to deny or limit a
student’s admission or access to campus residency under § 26-
504,” an institution “shall develop a process for determining
whether there is a relationship between a student’s criminal history
and campus residency or a specific academic program.” ED § 26-
505. Thus, there is a question as to whether an institution may only
make “decisions regarding admission” based on criminal history if
it determines, through its written process, that there is a
“relationship between a student’s criminal history and . . . a specific
academic program.” ED § 26-505.
Before turning to your question, then, we must determine
when an institution may deny admission based on criminal history,
as that might affect an institution’s ability, if any, to later rescind a
student’s admission based on such history. On this preliminary
matter, the key question is whether an institution may deny
admission based on criminal history only if it determines that there
is a “relationship between a student’s criminal history and . . . a
specific academic program,” ED § 26-505, or whether an
institution may deny admission based on criminal history for other
reasons as well, such as to address concerns about campus safety.
The answer to that question largely depends on how ED
§§ 26-504 and 26-505 are supposed to be read together. The first
possible reading is that—because ED § 26-504 is “subject to” ED
§ 26-505—an institution may deny admission under § 26-504 only
if it determines, using its written process under § 26-505, that there
is a “relationship between that student’s criminal history and . . . a
specific academic program.” Under that reading, if such a
relationship does not exist, then an institution could not deny
admission based on that student’s criminal history. In other words,
the only basis to deny admission under the Act would be when a
student’s criminal history might interfere with their ability to
complete the specific academic program to which they applied or
their ability to enter the field connected to that program after
10
The Act also permits an institution to make inquiries into and
consider a student’s criminal history for the purpose of “[o]ffering
supportive counseling or services to help rehabilitate and educate the
student on barriers a criminal record may present,” ED § 26-504(a)(2),
but we do not discuss that provision here because it is not relevant to
your question.
16 [106 Op. Att’y
graduation. 11 This first reading would therefore mean that an
institution could not deny admission based on criminal history
unless a student was applying to a “specific academic program,”
such as a nursing program, and the institution determined there was
a “relationship” between the student’s criminal history and that
program.
By contrast, the second possible reading is that the written
process under ED § 26-505 for determining whether there is a
relationship between a student’s criminal history and a specific
academic program only comes into play once an institution
decides, under ED § 26-504, that it wants to admit an applicant to
the institution generally. Under that reading, an institution would
first be prohibited by ED § 26-504 from “automatically or
unreasonably” restricting a student’s admission to the institution
based on that student’s criminal history. 12 And then, for those
students the institution otherwise wants to admit and who are
applying to a specific academic program (or for applicants who are
applying only to a specific academic program), the institution
would also have to determine, using its written process under ED
§ 26-505, whether there is a “relationship” between the student’s
criminal history and that program. Thus, although the institution
would have to use that written process when deciding whether “to
deny or limit a student’s admission [to a specific academic
program],” the institution could still deny admission to the
institution as a whole for reasons related to criminal history other
11
Because the term “specific academic program” is not expressly
defined by the Act, we consider “its ordinary and common sense
meaning.” Schreyer v. Chaplain, 416 Md. 94, 101-02 (2010). In
common parlance, the word “program” is generally understood to mean
“a planned, coordinated group of activities, procedures, etc., often for a
specific purpose” or, alternatively, “a prospectus or syllabus.” Webster’s
New Universal Unabridged Dictionary 1546 (2003). That meaning
also coincides with how the word “program” is used elsewhere in the
Education Article. See ED § 10-101(l) (defining “program” or
“educational program” as “an organized course of study that leads to the
award of a certificate, diploma, or degree”). We therefore interpret the
term “specific academic program,” as used in the Act, to encompass an
organized course of study in a particular subject that leads to an academic
credential.
12
We read the word “restrict” in § 26-504 as encompassing a denial
of admission, given that § 26-505 refers to an institution’s decision “to
deny or limit a student’s admission . . . under § 26-504.” ED § 26-505
(emphases added). In light of the linkage between those two provisions,
“restrict[ing]” admission seems to include “deny[ing]” admission.
Gen. 3] 17
than an identified “relationship between a student’s criminal
history and a specific academic program.” ED § 26-505. For
example, the institution could also deny admission based on
specific concerns about campus safety that are related to a student’s
criminal history, provided the institution does not do so
automatically or unreasonably.13
Although the statutory language is not entirely clear, our view
is that the second reading is the more natural one. Section 26-504
specifically authorizes institutions to use criminal history when
“[m]aking decisions regarding admission and access to campus
residency,” and it provides, as a limit on that general authorization,
only that institutions “may not automatically or unreasonably
restrict a student’s admission.” That section does not refer to
“specific academic program[s],” a term which instead appears only
in ED § 26-505, alongside the special rules that apply to decisions
about “access to campus residency.” Thus, to conclude that an
institution may only deny admission based on criminal history
when that history relates to a specific academic program, it would
be necessary to add the words “to a specific academic program”
after the phrase “decisions regarding admission” in ED § 26-504.
That addition, however, would conflict with the principle of
statutory construction that words ordinarily should not be added to
a statute when the General Assembly decided not to include them.
See, e.g., Whack v. State, 338 Md. 665, 673 (1995) (explaining that
courts ordinarily “will not add or delete words to obtain a meaning
not otherwise evident from the statutory language”).
What is more, it makes sense to have special rules for
decisions about admission to specific academic programs and
access to campus residency because they are most relevant to
students who have already been accepted at an institution, who the
Legislature might reasonably have thought were deserving of
further procedural protections and who might also face stigma if
they are excluded from programs or housing that are open to
13
To be clear, if a student were admitted to an institution and later
sought entry to a specific academic program within the institution, the
written process would likely be implicated at that time because, even
though the institution did not previously “deny” admission to the
institution, a program restriction based on the student’s criminal history
would constitute a “limit” on admission under ED § 26-505.
18 [106 Op. Att’y
peers. 14 Although students might select their specific academic
program (e.g., choose a major) at the time of their application to
the institution, students might also enter an institution without
selecting their program of choice and decide to do so later during
their time at the institution. The fact that institutions can decide
whether to admit students before specific academic programs are
even at issue suggests that admission to a specific academic
program is an additional consideration with its own additional
requirements under ED § 26-505 and that an institution’s ability to
deny admission to the institution as a whole is subject only to the
more general limitation in ED § 26-504 that the institution may not
restrict admission “automatically or unreasonably.”
To be clear, that more general limitation in ED § 26-504 still
requires the institution to have a “not . . . unreasonabl[e]” basis for
denying admission, such as a specific concern about how a
student’s criminal history might pose a risk to campus safety. And
the factors outlined as part of the written process in ED § 26-505
might well be relevant to that determination, even if they do not
directly govern the decision. 15 But a relationship with a specific
academic program would not be the only ground on which to deny
admission based on criminal history.
Although it is true that ED § 26-504 is “subject to” ED § 26-
505 (where the written process for specific academic programs is
codified), the general rule in § 26-504 could just as easily be
“subject to” § 26-505 in the sense that the written process in § 26-
505 applies to “decisions regarding admission” when those
decisions are about admission to a specific academic program,
rather than when the institution is denying admission to the
institution as a whole for other reasons related to criminal history.
After all, the General Assembly could easily have prohibited
institutions from denying admission to the institution unless there
is a relationship between a student’s criminal history and a specific
academic program, but it did not use that language. See Chicago
14
Meanwhile, for applicants who have applied for admission only to
a specific academic program, those rules ensure that a careful review of
criminal history occurs before a student commits to a program that the
student might be unable to complete due to that history.
15
As a reminder, those factors include: (1) the age of the student at
the time any aspect of the student’s criminal history occurred; (2) the
time that has elapsed since any aspect of the student’s criminal history
occurred; (3) the nature of the criminal history; and (4) any evidence of
rehabilitation or good conduct produced by the student. ED § 26-505(b).
Gen. 3] 19
Title Ins. Co. v. Mary B., 190 Md. App. 305, 317-18 (2010) (“[I]t
is not our function as an appellate court to add words to a statute
when the legislature could have added them but did not.”). 16 We
recognize, however, that the language of the statute is not entirely
clear and that a court might find some ambiguity on this point. 17
16
Although one legislator suggested a compromise that would have
permitted an institution to ask about criminal history only after admitting
applicants and then permitted the institution to restrict admission based
on criminal history only to the extent it “affects [the student’s] ability to
pursue a program,” Hearing on S.B. 543 Before the Senate Educ., Health,
and Envtl. Affairs Comm., 2017 Leg., Reg. Sess. (Feb. 15, 2017)
(statement of Sen. Pinsky), that does not appear to be the compromise
that was ultimately struck. The revised bill did not require institutions
to accept or reject applicants before inquiring into and considering
criminal history, nor did it expressly state that an applicant’s criminal
history will not affect admission unless it affects their ability to pursue a
specific academic program.
17
Another potential ambiguity is that the Act uses the term
“applicant” in ED § 26-503 when prohibiting questions about criminal
history on the admissions application but uses the term “student” in ED
§§ 26-504 through 26-506 when describing how institutions may use
criminal history. The use of the term “student” in those later provisions
could imply that they refer to someone who has already been admitted
and that, therefore, criminal history can only be taken into account in
making decisions regarding admission after an “applicant” has been
admitted to an institution and is a “student” seeking to enroll in a specific
academic program at that institution. See, e.g., Toler v. Motor Vehicle
Admin., 373 Md. 214, 223 (2003) (explaining that “when a legislature
uses different words, especially in the same section or in a part of the
statute that deals with the same subject, it usually intends different
things,” though noting that is “not an immutable rule”). However,
drawing such a sharp distinction between those two terms ignores the
fact that someone might apply directly to a specific academic program
in the first place, and the General Assembly presumably intended the
provisions in §§ 26-504 through 26-506 to cover that applicant, despite
the use of the word “student.” When read in context and in light of the
legislative history, the term “student” is more likely a vestige of the
original bill, which applied only to admitted students because institutions
were prohibited from taking criminal history into account in the
admissions process at all. See H.B. 694, 2017 Leg., Reg. Sess. (First
Reader). The revised bill, however, shifted that prohibition to the
admissions application—thus introducing the term “applicant”—while
expressly allowing consideration of criminal history in the admissions
process. See H.B. 694, 2017 Leg., Reg. Sess. (Third Reader).
20 [106 Op. Att’y
Given that potential ambiguity, we turn to the legislative
history for guidance, see Witte, 369 Md. at 525-26, and the
legislative history makes clear that the General Assembly intended
the second reading of the Act, because the second reading is far
more consistent with how the Act was described during the veto
override proceedings at the beginning of the 2018 legislative
session. As explained above, the Governor had vetoed the Act
because he was concerned that the bill “could lead to situations
where a school unknowingly admits a student with a violent past or
feels it must accept a student with a criminal history for fear of
running afoul of the law.” 2017 Md. Laws, Veto Messages at 4888.
That concern reflected an understanding of the bill—similar to the
first reading of the Act—where an institution would not be able to
deny admission based on concerns about campus safety but, rather,
only when there is a relationship between a student’s criminal
history and a specific academic program.
In responding to that concern, however, Delegate McIntosh,
a bill sponsor, explained that the Governor had failed to consider
that the amended bill allowed institutions to inquire into criminal
history, merely “shift[ed] when [they] can do that” until after the
initial admissions application, and did not “prescrib[e]” what
admissions offices must decide with regard to applicants with
criminal histories. House Floor Proceedings No. 2 (Jan. 11, 2018).
Under the amended bill, she emphasized, institutions “upon review
of the criminal record may . . . deny [applicants] admission” and
then, if institutions decide “they still want to admit” applicants with
criminal histories, “they can deny them housing and so on and so
forth.” Id. (emphasis added). She further explained that the bill’s
main goal, in her estimation, was to eliminate the deterrent effect
that the mere presence of questions about criminal history on the
admissions application had on potential applicants with criminal
histories. Id. Finally, at one point, she noted that the bill “very
much mirrors what [was] done with State employment,” id., where
such questions are deferred until later in the process—in that case,
the interview stage—but an employer’s discretion over whom to
hire is not constrained, see SPP § 2-203.
That characterization reflects an altogether different reading
of the statute from the Governor’s—more like the second reading
of the Act—under which institutions have the discretion to decide
whether “they still want to admit” applicants despite their criminal
histories and then have the further discretion, if the institution
wants to admit such an applicant, to deny or limit access to campus
residency or a specific academic program. In other words, it would
authorize a two-step admissions process, “where if someone
Gen. 3] 21
otherwise qualifies . . . they may be admitted,” but the institution
still has “the right to deny” admission based on the student’s
criminal history. House Floor Proceedings No. 2 (Jan. 11, 2018)
(statement of Del. McIntosh). Senator Conway, another a bill
sponsor, likewise distinguished between an “initial look at the
application” and the moment when institutions decide whether they
“want to accept these individuals” after considering their criminal
histories, concluding that institutions would still “be able to make
the determination whether or not [they] want to accept these
individuals into [the] institution.” Senate Floor Proceedings No. 3
(Jan. 12, 2018).
Such statements from the bill’s sponsors on the floor, “while
not conclusive on legislative intent, are generally accorded some
weight by the courts in determining the meaning of a statute.” 87
Opinions of the Attorney General 106, 113 n.6 (2002). That is
because “bill sponsors tend to know the details of their bills better
than other members, so other members will often rely on their
explanations when deciding how to vote.” 103 Opinions of the
Attorney General 18, 39 (2018) (citing Jack Schwartz & Amanda
Stakem Conn, The Court of Appeals at the Cocktail Party: The Use
and Misuse of Legislative History, 54 Md. L. Rev. 432, 446
(1995)). That is also particularly true when, as here, the statements
were made just prior to the final vote. See Davis, 426 Md. at 231
n.7 (“We rely on the testimony of the bill sponsor in determining
the legislative intent[,] especially where there were minimal
amendments to the bill introduced after that testimony.”). 18
Thus, to conclude that an institution cannot deny admission to
the institution unless there is a relationship between a student’s
criminal history and a specific academic program would be more
“prescri[ptive]” than the members of the General Assembly
understood the Act to be when voting to override the Governor’s
veto. House Floor Proceedings No. 2 (Jan. 11, 2018) (statement of
Del. McIntosh). Instead, in our view, the Act generally permits an
institution to deny admission based on criminal history, including
18
In fact, there is evidence here that at least one member relied on a
bill sponsor’s characterization of the bill. See Senate Floor Proceedings
No. 3 (Jan. 12, 2018) (statement of Sen. Rosapepe) (summarizing his
understanding of Senator Conway’s explanation to mean that, “[i]f that
person is found to be a danger, they won’t be let in[,]” and, based on that
understanding, expressing his support for overriding the Governor’s
veto).
22 [106 Op. Att’y
to address specific concerns about campus safety, provided the
institution does not do so automatically or unreasonably. 19
With that understanding, the next logical question becomes
whether an institution may rescind an offer of admission, before
the student has actually enrolled, based on criminal history. In our
view, the decision to rescind an offer of admission is just as much
a “decision[] regarding admission,” ED § 26-504, as the decision
to deny admission in the first place. Thus, if an institution may
deny admission on grounds other than a relationship between the
student’s criminal history and a specific academic program, such
as specific concerns about campus safety, there is nothing in the
Act that would prevent the institution from rescinding an offer of
admission on those same grounds, provided the decision is not
automatic or unreasonable. In fact, although the bill as originally
proposed would have prohibited an institution from “us[ing] any
information about a student’s criminal history to rescind an offer
of admission,” that provision was removed as part of the
amendment allowing an institution to consider criminal history
when “[m]aking decisions regarding admission.” H.B. 694, 2017
Leg., Reg. Sess. (Third Reader). The removal of that language
confirms that an institution may rescind an offer of admission when
otherwise permitted to take criminal history into account under the
Act. See, e.g., SVF Riva Annapolis, LLC v. Gilroy, 459 Md. 632,
647-48 (2018) (describing “amendments that were considered
and/or enacted as the statute passed through the Legislature” as
“persuasive evidence of legislative purpose”); Harris v. State, 331
Md. 137, 152 (1993) (concluding that an amendment deleting the
word “possesses” from a criminal statute reflected the Legislature’s
intent to require more than mere possession of a handgun).
19
Delegates McIntosh and Barron—both sponsors of the House bill—
also submitted a letter to our Office to provide comments on this opinion
request. They took the position in their letter that the Act does not permit
institutions to deny or rescind admission based on criminal history unless
there is a relationship between that history and a specific academic
program. See Letter from Delegates Maggie McIntosh and Erek L.
Barron to Attorney General Brian E. Frosh (Oct. 12, 2019). These
comments, however, are not a substitute for pre-enactment legislative
history, and a court would not defer to them. As the Court of Appeals
has recognized, “little weight is to be accorded to post-enactment
statements of legislative intent, even by the legislators who passed the
particular law.” Building Materials Corp. of Am. v. Board of Educ. of
Baltimore County, 428 Md. 572, 592 (2012) (internal citation omitted).
Gen. 3] 23
As we understand it, however, the question you asked is
whether the Act permits an institution to rescind an enrolled
student’s admission based on criminal history not discovered until
after enrollment. 20 Although there may be a difference from a due
process perspective between rescinding an offer of admission and
rescinding admission after a student has enrolled at the institution,
see footnote 6 supra, the Act does not differentiate between the
two, at least not expressly. Rather, the Act allows an institution to
consider criminal history when “[m]aking decisions regarding
admission” as long as the institution does not “automatically or
unreasonably restrict a student’s admission” on that basis, ED § 26-
504, and complies with the written process under ED § 26-505
when deciding whether to deny or limit a student’s admission to a
“specific academic program.”
As an initial matter, therefore, we must decide whether a
decision to rescind admission after enrollment would be a
“decision[] regarding admission” under ED § 26-504. Given that
courts have analyzed the decision to rescind a student’s admission
after enrollment in certain circumstances as a “dismissal,” see, e.g.,
Fuller, 909 F. Supp. 2d at 876, there is at least some question as to
whether that decision is a “decision[] regarding admission” as
contemplated by the Act, ED § 26-504 (emphasis added); see also,
e.g., Black’s Law Dictionary (11th ed. 2019) (defining “admission”
as “[t]he process of allowing people to enter a college, university,
or other institution” (emphasis added)). In fact, it is not even clear
whether institutions in Maryland have a process for rescinding
admission after enrollment other than when a student misrepresented
20
To be more precise, the question you asked was whether an
institution may rescind or suspend a student’s admission based on
criminal history discovered after enrollment. The term “suspend” in the
higher education context generally refers to a situation where an
institution bars a student from attending classes and participating in
campus activities for a specified period of time as a result of a finding of
academic or non-academic misconduct, which does not seem to be
directly applicable here. To the extent you are referring to a similarly
temporary bar while an institution decides whether to rescind admission,
we have found nothing to suggest that the Act authorizes a suspension of
an enrolled student just so that an institution may make a “decision[]
regarding admission” where no misconduct is alleged. But to the extent
that you are referring to a temporary hold on the student’s admission
before enrollment to determine whether to rescind an offer of admission,
that might well be permissible given that the General Assembly
specifically deleted the language from the original bill that would have
prohibited an institution from rescinding an offer of admission.
24 [106 Op. Att’y
information during the admissions process, cf. Fuller, 909 F. Supp.
2d at 876; if they do, then such instances seem to be exceedingly
rare.
But to the extent that the mere discovery of a student’s
criminal history involving conduct that occurred before enrollment
causes an institution to reconsider the student’s admission after
enrollment, that decision appears to have more in common with a
decision about admission than with a dismissal based on academic
or disciplinary problems that arose after enrollment. After all, the
institution is essentially deciding that it would not have admitted
the student had it known of that criminal history at the time of
admission. In that sense, then, it is more likely a “decision[]
regarding admission” subject to the Act’s requirements. Although
the Act focuses primarily on the admissions process before
enrollment, it also applies beyond a student’s initial entry to the
institution under at least some circumstances, given its additional
requirements for campus residency and specific academic
programs. For example, if a student is admitted to a specific
academic program and the student’s criminal history would prevent
the student from completing the program, the General Assembly
presumably intended an institution’s authority to deny admission
to the program on that ground, see ED § 26-505, to extend to the
decision to rescind admission to the program; otherwise, a student
who did not withdraw from the program would be left in limbo. 21
Thus, in our view, the Act permits an institution to rescind a
student’s admission based on criminal history discovered after
enrollment, but only if the institution does not make that decision
“automatically or unreasonably.” ED § 26-504(b). While we
doubt that the General Assembly intended rescission after
enrollment to be the primary way that institutions would address
criminal history, especially given that the Act allows for
consideration of criminal history in admissions well before that
point, the language of the Act appears to leave room for an
institution to make that decision subject to the same not-automatic-
or-unreasonable standard that applies to other “decisions regarding
admission.” ED § 26-504.
21
This interpretation is also bolstered at least somewhat by the fact
that the General Assembly deleted the provision in the original bill that
prohibited an institution from “us[ing] any information about a student’s
criminal history to rescind an offer of admission,” though we
acknowledge that this fact alone is not conclusive, as it does not directly
address the rescission of admission after enrollment.
Gen. 3] 25
As a practical matter, however, the circumstances under
which an institution may rescind a student’s admission after
enrollment will likely be narrower than the circumstances under
which an institution may deny admission or even rescind an offer
of admission before enrollment. After all, the decision to rescind
admission, as with other decisions regarding admission under the
Act, cannot be made “unreasonably,” and a decision to rescind
admission after enrollment raises equitable considerations
(including reliance interests on the part of the student) that were
not at play at earlier stages of the process and will inevitably factor
into that reasonableness determination. Although what is
reasonable will depend on the circumstances, our sense is that, if
an institution seeks to rescind an enrolled student’s admission on
the basis of criminal history discovered after enrollment, it will
generally be more difficult to say that the institution is not acting
“unreasonably” in making that decision as compared to decisions
made prior to enrollment, particularly when the institution could
have inquired about the student’s criminal history before the
student enrolled. And it will likely become increasingly difficult,
along a sliding scale, to say that a decision to rescind admission is
not unreasonable the longer the student has been enrolled at the
institution. 22
With that note of caution, there will likely be some situations
when rescission of admission after enrollment would be reasonable
under the Act. For example, if a student failed to disclose or
misrepresented his or her criminal history during the admissions
process, it would likely be reasonable for an institution to rescind
that student’s admission. Cf. Fuller, 909 F. Supp. 2d at 876. And
although we cannot foresee all of the individual factual situations
that might arise, there will presumably be other situations when
rescission would also be reasonable. Ultimately, what is reasonable
in any particular instance will depend on specific facts about,
among other things, the institution’s admissions process and the
nature of the student’s criminal history. But there remain limits on
when an institution may make decisions regarding admission based
on criminal history—limits that, in practice, likely become more
22
Because you have asked about an institution’s ability to rescind the
admission of an enrolled student when it discovers criminal history after
the student has enrolled, we do not decide the extent of an institution’s
ability to rescind admission based on criminal history that it knew about
and considered before the time of enrollment. We suspect, however, that
it might be even more difficult to rescind admission in such cases.
26 [106 Op. Att’y
difficult to overcome once a student has enrolled and increasingly
difficult to overcome the longer the student has been enrolled. 23
To be sure, our reading of the Act does not go as far as some
members of the General Assembly and some advocates might have
hoped in removing barriers to higher education for applicants with
a criminal history. For example, one advocate explained that “no
one should be denied access to an education” based on safety
concerns derived from criminal history, given that the State would
have already determined “that they have served their time and that
them being released would not necessarily be a danger to public
safety” in any other setting. See Hearing on S.B. 543 Before the
Senate Educ., Health, and Envtl. Affairs Comm., 2017 Leg., Reg.
Sess. (Feb. 15, 2017) (statement of Caryn York, Job Opportunities
Task Force). Although that argument may have force as a matter
of policy, the reading of the Act outlined in this opinion—reflecting
an apparent compromise—is more consistent with the language of
the statute as ultimately enacted and with the legislative history.
Our reading also still advances in at least four important ways
the purpose behind the legislation to expand educational opportunity
for those with criminal histories. First, prohibiting questions about
criminal history on initial admissions applications eliminates a
deterrent for many applicants who might otherwise decline to apply
out of fear that criminal history would be an automatic disqualifier.
As Delegate McIntosh explained on the floor, this was a main goal of
the Act. Second, prohibiting institutions from automatically or
unreasonably restricting admission based on criminal history
prevents those same applicants from being categorically denied
admission without any real consideration of their individual
qualifications and circumstances. Third, recognizing limits on the
ability of institutions to rescind admission after enrollment prevents
institutions from undermining the rehabilitative purposes of the Act.
Finally, requiring institutions to develop a written process to deny or
limit a student’s access to campus residency or admission to a
specific academic program promotes careful decision-making and
provides qualified students with an opportunity to overcome their
23
Apart from the Act, an enrolled student would still be entitled to
receive whatever process is due under the circumstances, which might
further limit the discretion of institutions to rescind admission. See, e.g.,
Fuller, 909 F. Supp. 2d at 877-78 (reviewing whether a public
university’s decision to dismiss a student based on criminal history was
“careful and deliberate”); Harwood, 130 Md. App. at 484 (reviewing
whether a private university acted “arbitrarily and capriciously” in
dismissing a student, even though the Due Process Clause does not
apply).
Gen. 3] 27
past and pursue the programs and related careers of their choice.
All of this furthers the purpose of the Act without taking away the
discretion of institutions of higher education to “choos[e]” whom
they “want to admit” and without “prescribing” any particular
admissions decisions. House Floor Proceedings No. 2 (Jan. 11,
2018) (statement of Del. McIntosh).
B. Juvenile Records
Your second question is whether the Act permits an institution
of higher education to make inquiries into and consider juvenile
records as part of the admissions process. The Act, by its terms,
applies only to “criminal history,” which is defined for purposes of
the Act as “an arrest or a criminal conviction.” ED § 26-501(c).
Thus, we must first determine whether juvenile records constitute
“criminal history” as defined by the Act. If juvenile records are
“criminal history,” then institutions would not be able to ask about
them on the admissions applications covered by the Act but could,
at a later stage of the admissions process, inquire into and consider
them to the extent permitted by the Act. By contrast, if juvenile
records are not “criminal history,” then institutions would be able
to inquire into and consider them at any stage of the admissions
process, including initial admissions applications, unless that is
prohibited by other existing law.
As an initial matter, we interpret “juvenile records” as used in
your question to encompass police and court records generated in
the process of determining whether a child committed a delinquent
act or other similar violation under Maryland’s juvenile
delinquency laws. Cf. CJP § 3-8A-27.1(a)(3) (defining “juvenile
record” in the context of expungement to mean “a court record and
police record concerning a child alleged or adjudicated delinquent
or in need of supervision or who has received a citation for a
violation”).
Based on that understanding, it seems clear that records about
the adjudication of a child under Maryland’s juvenile delinquency
laws cannot constitute “criminal history” within the meaning of the
Act because an adjudication does not result in “a criminal
conviction.” In fact, the juvenile delinquency statute expressly
provides that “[a]n adjudication of a child [under those laws] . . . is
not a criminal conviction for any purpose.” CJP § 3-8A-23(a)(1)
(emphasis added). Instead, a child under the age of 18 who is
alleged to have committed a delinquent act—that is, “an act which
would be a crime if committed by an adult”—generally has an
28 [106 Op. Att’y
adjudicatory hearing in juvenile court, not in criminal court. CJP
§§ 3-8A-01(l), 3-8A-18. If the juvenile court finds the allegations
to be true, then the child is “adjudicated delinquent” but does not
receive a “criminal conviction.” CJP §§ 3-8A-18(c), 3-8A-
23(a)(1). Thus, the plain language of the Act, which applies only
to “criminal history,” indicates that it does not apply to juvenile
records addressing the adjudication of a child.
Although the Act also defines “criminal history” to include an
“arrest,” and a child under the age of 18 may be “taken into custody
. . . pursuant to the law of arrest,” CJP § 3-8A-14(a)(2), we doubt
that the General Assembly intended juvenile arrest records to
constitute “criminal history” under the Act unless they actually lead
to a prosecution in the criminal court. Juvenile proceedings are, by
design, “civil and not criminal in nature,” In re Anthony R., 362
Md. 51, 69 (2000), so it would be strange to classify juvenile arrests
that lead to such proceedings as “criminal history,” ED § 26-501
(emphasis added). Besides, as explained above, it is clear from the
language of the statute that juvenile adjudications are not “criminal
history,” and treating records of arrest differently from records of
adjudication seems like a result the General Assembly would not
have intended. See Lockshin, 412 Md. at 276 (recognizing that
statutes are interpreted to avoid results that are “absurd, illogical,
or incompatible with common sense”); see also Montgomery Ward
& Co. v. Cliser, 267 Md. 406, 413-14 (1972) (holding that a
juvenile arrest was inadmissible as character evidence in a civil
action, even though the statute’s literal terms only barred admission
of juvenile adjudications).
Although one could argue that the way to treat juvenile arrests
and adjudications the same in this context should be to treat them
both as covered by the Act, rather than both not covered by the Act,
there is no ambiguity in the term “criminal history” as it relates to
juvenile adjudications. Such adjudications are simply not
“criminal conviction[s].” See CJP § 3-8A-23(a)(1) (providing that
“[a]n adjudication of a child . . . is not a criminal conviction for any
purpose”). Because it is so clear that juvenile proceedings do not
result in a “criminal conviction,” we read that part of the definition
of “criminal history” as informing the meaning of “arrest” in the
definition, rather than the other way around. We thus do not think
that juvenile records, as a general matter, constitute “criminal
history” under the Act. 24 Rather, the Act applies to individuals with
24
However, if a juvenile is prosecuted as an adult in criminal court,
then those records would likely be “criminal history” under the Act. As
Gen. 3] 29
adult criminal records, either because they were juveniles
prosecuted as adults or were arrested or convicted as adults.
That does not mean, however, that juvenile records are
unprotected or that institutions of higher education are free to ask
about an applicant’s juvenile record at any stage of the admissions
process. It seems unlikely that the General Assembly would have
prohibited institutions from asking about adult criminal records on
undergraduate admissions applications—and from “automatically
or unreasonably” restricting admission based on the subsequent
discovery of adult criminal records—yet given institutions carte
blanche to ask about juvenile records, which are generally viewed
as more sensitive because they reflect youthful transgressions that,
if disclosed, might unfairly hinder individuals into adulthood. See
M.P. v. Schwartz, 853 F. Supp. 164, 168 (D. Md. 1994)
(recognizing that “special solicitude for the privacy of a minor is a
pervasive feature of American law”). After all, given the age at
which most applicants seek to enroll as undergraduates, one would
expect the Legislature to have been just as concerned, if not more
concerned, about juvenile records.
Rather than expressly protect juvenile records in the Act, the
General Assembly apparently assumed that juvenile records would
remain confidential during the admissions process based on other
existing law. In fact, during the veto override debate in the House,
one delegate who opposed the bill contrasted a criminal record with
“a small mistake . . . held in a juvenile file” that is “not to be
released,” and indicated that, as to juvenile records, he believed the
Legislature had “already taken care of that [problem].” House
Floor Proceedings No. 2 (Jan. 11, 2018) (statement of Del. Folden).
we have explained in prior opinions, “if a juvenile is charged as an adult
with a crime which falls outside the original jurisdiction of the juvenile
court, the confidentiality provisions [applicable to juvenile records] do
not apply.” Md. Op. Att’y Gen. No. 94-005, 1994 WL 31853 (Jan. 24,
1994) (unpublished) (discussing the former CJP § 3-804, which was
renumbered CJP § 3-8A-03 by 2001 Md. Laws, ch. 415). In other words,
if a juvenile is prosecuted as an adult in criminal court, “the ground rules
change. Nothing from the sphere of juvenile causes, including its
confidentiality strictures, carries over.” Id. The juvenile court does not
have original jurisdiction when children of certain ages are alleged to
have committed certain serious crimes, unless an order removing the
case to juvenile court has been filed under § 4-202 of the Criminal
Procedure Article. See CJP § 3-8A-03(d). Thus, records related to an
offense that falls outside the original jurisdiction of the juvenile court
would likely constitute “criminal history” under the Act.
30 [106 Op. Att’y
But see Hearing on H.B. 694 Before the House Appropriations
Comm., 2017 Leg., Reg. Sess. (Feb. 14, 2017) (written testimony
of Juvenile Law Center) (explaining that “[o]ne of the most
immediate consequences befalling youth in the juvenile justice
system is the barrier to post-secondary educational opportunities”
and contending that “[t]he Act squarely addresses that”).
Thus, the question becomes whether any other law prohibits
an institution of higher education from inquiring into and
considering juvenile records as part of the admissions process. We
look to Maryland’s juvenile delinquency statute as the most likely
place to find such a law. Under that statute, “police records” and
“court records” concerning juveniles are generally confidential.
CJP § 3-8A-27. More specifically, those juvenile records “may not
be divulged, by subpoena or otherwise, except by order of the court
upon good cause shown or as otherwise provided in [the Education
Article].” Id. 25 The purpose of that confidentiality provision, as
we have explained in prior opinions, is “to protect and to promote
the rehabilitation of children who come within the ambit of the
juvenile courts.” 85 Opinions of the Attorney General 249, 255
(2000) (citation and internal quotation marks omitted) (discussing
the former CJP § 3-828, which was renumbered as CJP § 3-8A-27
by 2001 Md. Laws, ch. 415); see also Lopez-Sanchez v. State, 155
Md. App. 580, 598 (2004), aff’d, 388 Md. 214 (2005) (explaining
that “[t]he General Assembly enacted the Juvenile Causes Act . . .
to advance its purpose of rehabilitating the juveniles who have
transgressed to ensure that they become useful and productive
members of society”). Based on that “clear protective intent,”
inspection of juvenile records is “categorically denied” to members
of the public, unless allowed by court order. 55 Opinions of the
Attorney General 320, 324-25 (1970).
But while CJP § 3-8A-27 would no doubt prevent the police
or courts from responding to an inquiry about juvenile records from
25
The applicable sections of the Education Article pertain only to
elementary and secondary schools. More specifically, ED §§ 7-303 and
22-309 permit, respectively, disclosure of information with certain local
school system personnel when a student has been arrested for a
“reportable offense” and disclosure of information between the
Maryland State Department of Education and Department of Juvenile
Services (“DJS”) to ensure the appropriate delivery of services to
students in the Juvenile Services Educational Program. There is no
similar provision permitting or requiring the disclosure of juvenile
records to institutions of higher education. For sake of completeness, we
also note that CJP § 3-8A-27 has additional exceptions for other
enumerated uses of juvenile records, but none of those are relevant here.
Gen. 3] 31
an institution of higher education, it is less clear whether it would
also prevent the institution from asking applicants directly about
their juvenile records or protect applicants from having to respond
to those questions on admissions applications. See, e.g., Joy
Radice, The Juvenile Record Myth, 106 Geo. L.J. 365, 414 (2018)
(explaining that confidentiality statutes are often not as protective
as they might appear at first). We have never before addressed
whether, under CJP § 3-8A-27, an institution of higher education
may ask applicants directly about their juvenile records, nor have
the Maryland courts specifically addressed that question.
Other state attorneys general who addressed similar questions
have reached varying conclusions. The Wisconsin Attorney
General, for example, concluded that the state’s confidentiality
statute as it existed at the time prevented a third party from
inquiring of an applicant about juvenile records. Wisc. Op. Att’y
Gen. No. 97-78, 1978 WL 34047 (Dec. 28, 1978). The Attorney
General explained that, because the confidentiality statute provided
that “contents of juvenile records shall not be disclosed except by
order of the court,” a licensing board could not include on its
license application a question about whether applicants were ever
“found delinquent by a juvenile court.” Id. In fact, such a question
would be “contrary to legislative policy” given a determination by
the state’s legislature “that the best interests of the child and the
administration of the juvenile justice system require protecting the
confidentiality of police, court and social agency records relating
to juveniles.” Id. 26 More recently, the Alabama Attorney General
similarly concluded that an employer could not question applicants
about juvenile adjudications, reasoning that “[r]equiring a person
to disclose independently their juvenile history that is not
discoverable through official channels defeats the purpose of the
statutes to protect the confidentiality and anonymity of the juvenile.”
Ala. Op. Att’y Gen. No. 2005-11, 2004 WL 3188043 (Oct. 26,
2004).
26
A subsequent opinion by the Wisconsin Attorney General in the
context of employment noted that this conclusion is no longer valid
because the state’s legislature amended the statute at issue to include
adjudications of delinquency in the definition of “criminal record,”
presupposing that an employer may ask questions about that criminal
record. Wisc. Op. Att’y Gen. No. 15-90, 1990 WL 596869 (April 24,
1990). In Maryland, however, juvenile records are not criminal records.
See CJP § 3-8A-23(a)(1). The statute analyzed in the Wisconsin
Attorney General’s 1978 opinion is thus far more analogous to
Maryland’s confidentiality statute.
32 [106 Op. Att’y
But at least two other state attorneys general have reached the
opposite conclusion, albeit with some qualifications. The North
Dakota Attorney General decided that, because nothing in that
state’s confidentiality statute expressly prohibited a licensing board
from inquiring about an applicant’s juvenile record, “[w]hether a
state licensing board requests on a licensure application
information regarding juvenile adjudications is a policy matter that
must be decided by the licensing board.” N.D. Op. Att’y Gen. No.
98-02, 1998 WL 15037 (Jan. 8, 1998). 27 Similarly, the Virginia
Attorney General concluded that, although state law provided for
the confidentiality of records maintained by the juvenile court, it
did not “specifically prevent a state agency or private individual
from inquiring of a juvenile concerning his juvenile record,” and
thus the Division of Motor Vehicles could ask minors applying for
a driver’s license about their juvenile records. 1976-77 Va. Op.
Att’y Gen. 140, 1977 WL 27321 (Jan. 14, 1977). But, in that
situation, the question on the driver’s license application at issue
was “specifically required” by the Motor Vehicle Law, whereas
there is no Maryland law that would specifically require a higher
education institution to ask about juvenile history. Id. 28
Like the attorneys general in Wisconsin and Alabama, we
conclude that our state’s juvenile delinquency statute prohibits an
institution of higher education from asking applicants about their
juvenile records as part of the admissions process, especially when
that statute is read in conjunction with the Act. Even if the literal
27
The North Dakota Attorney General did, however, urge licensing
boards to consider, as a matter of policy, whether they really needed to
ask about juvenile history information, given that “the Legislature did
not intend juvenile adjudications to hamper or impede the progress of
youth or otherwise jeopardize their future,” and that “[r]elying on
juvenile adjudications to deny licensure would be contrary to that
policy.” Id.28
At least one state, Illinois, does specifically prevent inquiries into
juvenile records, but only where those records have been expunged. See
705 Ill. Comp. Stat. Ann. 405/5-915(2.6) (providing that, after
expungement, a person “may not be required to disclose that he or she
had a juvenile law enforcement or juvenile court record”); id. 405/5-
923(c) (“Employers may not ask, in any format or context, if an applicant
has had a juvenile record expunged.”). Maryland has a provision that
prevents “an employer or educational institution” from requiring
disclosure of expunged information about criminal charges “in an
application, interview or other means,” Md. Code Ann., Crim. Proc.
(“CP”) § 10-109, but that provision—like the Act—does not refer to
juvenile records.
Gen. 3] 33
terms of CJP § 3-8A-27 protect only against the disclosure of
juvenile “records,” we think that it was also intended to protect the
confidentiality of the existence of, and underlying information
contained in, those records. See CJP § 3-8A-02(b) (providing that
the juvenile delinquency statute “shall be liberally construed to
effectuate [its] purposes”). More specifically, the juvenile
delinquency statute provides, with very limited exceptions, that
juvenile records “may not be divulged, by subpoena or otherwise,”
unless allowed by court order. CJP § 3-8A-27 (emphasis added).
That implies that access to juvenile records by other means,
including by asking applicants directly, is prohibited, particularly
in the context of higher education where allowing for such an
inquiry would be in tension with the later-enacted Maryland Fair
Access to Education Act. 29
After all, the context in which we read the language of the
juvenile delinquency statute includes “its relationship to earlier and
subsequent legislation.” Kaczorowski v. Mayor & City Council of
Baltimore, 309 Md. 505, 515 (1987). As both the Court of Appeals
and the Supreme Court have recognized, a later-enacted statute can
often shed light on the meaning of an earlier enactment. See In re
Douglas P., 333 Md. 387, 391-94 (1994) (finding that “when
considered in light of [a later-enacted statute’s] premise,” a prior
statute intended child abuse to be the basis for a delinquent act
under Maryland’s juvenile laws, even though the earlier statute had
not expressly said so); see also, e.g., Food & Drug Admin. v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 143-44 (2000)
(concluding that agency did not have jurisdiction over tobacco
products because its statute would require removal of products
from the market and such a ban would be contrary to congressional
intent expressed in more recent tobacco-specific legislation);
United States v. Fausto, 484 U.S. 439, 453 (1988) (explaining that
the “classic judicial task of reconciling many laws enacted over
time, and getting them to ‘make sense’ in combination, necessarily
assumes that the implications of a statute may be altered by the
implications of a later statute”).
We thus consider the language of CJP § 3-8A-27 in light of
the more recent Act’s apparent “premise,” In re Douglas P., 333
Md. at 394, that juvenile records would remain confidential during
29
You have not asked, and we do not decide here, whether CJP § 3-
8A-27 prohibits other third parties from asking applicants about their
juvenile records directly for other purposes, such as employment or
licensure.
34 [106 Op. Att’y
the admissions process. Not only does CJP § 3-8A-27 imply that,
unless an express exemption applies, the contents of juvenile
records may not be divulged except by court order, but the Act
further implies, by prohibiting inquiries only into adult criminal
history, that juvenile records must already have been protected
from inquiry under § 3-8A-27. 30 In fact, the General Assembly
might have declined to refer to juvenile records in the Act because
to do so could have left them less protected. That is, if juvenile
records had been included in the definition of “criminal history”
under the Act, the Act would have prohibited questions on the
initial admissions application but would have allowed questions at
a later stage of the admissions process.
It thus seems more likely that the General Assembly intended
for CJP § 3-8A-27 to keep juvenile records confidential than for
such records to be so conspicuously unprotected. As we have
explained in prior opinions, the General Assembly “intended not
only to provide the most ideal rehabilitative environment possible
for a child by making his acts of delinquency inviolate insofar as
public disclosure is concerned, but also intended to protect an
adult’s reputation from being damaged from transgressions which
amount to acts of delinquency during his youth.” 55 Opinions of
the Attorney General 320, 321-22 (1970). If the contents of
confidential juvenile records could be disclosed merely by
requiring an applicant to personally divulge their contents in
response to a question on an admissions application, that would
30
Even when the Common Application included a criminal history
question, the question did not implicate juvenile records. That question
and the accompanying instructions stated:
Have you ever been adjudicated guilty or
convicted of a misdemeanor or felony? Note that
you are not required to answer “yes” to this
question, or provide an explanation, if the
criminal adjudication or conviction has been
expunged, sealed, annulled, pardoned, destroyed,
erased, impounded, or otherwise required by law
or ordered by a court to be kept confidential.
A brochure prepared in collaboration with the Maryland Office of the
Public Defender advised that “[b]ecause Maryland juvenile records are
confidential, you can answer ‘no’ to this question if you only have a
juvenile record in Maryland, you don’t have an adult record, and you
don’t have a juvenile record in another state.” See National Juvenile
Defender Center, Your Juvenile Record Can Affect Your Future,
https://njdc.info/wp-content/uploads/2018/04/Your-Juvenile-Record-
Can-Affect-Your-Future.pdf.
Gen. 3] 35
erode, if not render entirely pointless, the statute’s protective
purpose, as institutions of higher education would easily be able to
circumvent the law that otherwise prohibits them from accessing
that information. See, e.g., Ala. Op. Att’y Gen. No. 2005-11, 2004
WL 3188043 (2004). It also makes little sense to permit
educational institutions to ask about an applicant’s juvenile history
when the institution cannot obtain the underlying records and thus
“cannot confirm the truthfulness of a response to a question
regarding juvenile adjudications.” N.D. Op. Att’y Gen. No. 98-02,
at *2. 31
Thus, even though the Act generally does not apply to
juvenile records, we think that CJP § 3-8A-27, especially when
read in conjunction with the Act, prohibits an institution of higher
education from asking about those records on the initial admissions
application—as is the case for criminal history under the Act—and
also later in the admissions process. 32 In important ways, then,
Maryland law may be even more protective of the information in
juvenile records than the Act would be of criminal history.
We caution, however, that it is not clear whether CJP § 3-8A-
27 would prohibit institutions of higher education from asking
applicants about juvenile records from other states. Each year,
Maryland institutions receive applications from out-of-state
applicants, whose juvenile records may or may not be protected by
31
To be sure, we have concluded in prior opinions that “observable
facts that exist independently of the contents of a record” do not
constitute “records.” 78 Opinions of the Attorney General 240 (1993)
(concluding that DJS could admit members of the public to observe
juvenile facilities, because “merely by affording such access the
Department does not disclose the name of any child or otherwise provide
information from the child’s record”). But asking applicants about their
juvenile records directly does not give rise to facts that exist
independently of those records. See Johnson v. State, 3 Md. App. 105,
115 (1967) (noting that it is impermissible to attack a witness’s
credibility by asking about juvenile records directly, because juvenile
proceedings are not admissible). To the contrary, such questions seek
the records themselves or their “contents,” CJP § 3-8A-27, and that
information is confidential.
32
Although one could argue that CJP § 3-8A-27 only means that an
applicant may not be required to answer such questions (and does not
prohibit asking the questions), we doubt that the General Assembly
intended that institutions of higher education be able to ask such
questions and for confidentiality to depend on whether juveniles are
aware of their right not to answer.
36 [106 Op. Att’y
analogous confidentiality statutes in their respective states.
Although it would make sense to treat out-of-state applicants the
same as other applicants for this purpose and we urge institutions
to take that approach, it might not be strictly required. For that
reason, the General Assembly may wish to clarify the extent to
which the Act applies to juvenile records or the extent to which CJP
§ 3-8A-27 prohibits institutions of higher education from asking
about juvenile records, both from Maryland and from other states.
As a final point, although CJP § 3-8A-27 prevents institutions
of higher education from inquiring into an applicant’s juvenile
records, it does not address to what extent an institution may
consider that information if it is somehow discovered via other
means. It seems unlikely to us that institutions in Maryland were
taking this information into account before the Act or that they
would do so now. Nevertheless, when that provision is read in
conjunction with the Act, we think the General Assembly would
intend that the institution “consider the State’s policy to promote
the admission of students with criminal records” and to apply that
same general policy to students with juvenile records so as “to
provide th[o]se students with the opportunity to obtain the
knowledge and skills needed to contribute to the State’s economy.”
ED § 26-506.
III
Conclusion
In our opinion, the Act permits an institution of higher
education to rescind an enrolled student’s admission based on
criminal history discovered after enrollment but, as with other
decisions regarding admission under the Act, the institution may
not do so “automatically or unreasonably,” ED § 26-504, and must
also provide the student whatever process is due under the
circumstances. We doubt, however, that the General Assembly
intended for this to be the primary way to address criminal history
under the Act, and the circumstances under which an institution
may rescind a student’s admission after enrollment will likely be
narrower than the circumstances under which an institution may
deny admission or even rescind an offer of admission before
enrollment.
Finally, although the Act generally does not apply to juvenile
records, we think that Maryland’s juvenile delinquency statute,
especially when read in conjunction with the Act, prohibits an
institution of higher education from inquiring into juvenile records
as part of the admissions process. To the extent juvenile records
Gen. 3] 37
are otherwise discovered, we think the State’s policy to promote
the admission of students with criminal histories likely extends to
those with juvenile histories as well.
Brian E. Frosh
Attorney General of Maryland
Alan J. Dunklow
Assistant Attorney General
Patrick B. Hughes
Chief Counsel, Opinions and Advice