Community colleges have a more diverse student population than do four-year institutions, according to the Ohio Association of Community Colleges. For example, an American Association of Community Colleges’ fact sheet states the average student age at community colleges is 28. Fifty-eight percent of those students are women, and 60 percent attend part-time.

But despite the apparent differences in their student population, community colleges deal with many of the same legal issues faced by four-year institutions, said Corinne Kowpak and Barbara Lee in a presentation at the 21st Annual Legal Issues in Higher Education conference. Kowpak is dean of students at York County Community College, while Lee is a professor of human resource management at Rutgers University and an attorney at Edwards Angell Palmer & Dodge, LLP.

In a poll conducted prior to the conference, the presenters found three issues that were of particular concern to community college officials: (1) institutional responsibility and response to students’ off-campus arrests; (2) academic and cocurricular issues related to students who are parolees or registered offenders; and (3) access of student affairs professionals to legal counsel.

Off-campus arrests or misconduct

Breach of contract and due process are the main legal concerns when it comes to disciplining students because of off-campus arrests or misconduct, Lee and Kowpak said.

“As long as the college can articulate a reasonable relationship between the off-campus misconduct and the well-being of the college community, courts are unlikely to overturn a disciplinary action unless they find that it was arbitrary, an abuse of discretion, or a violation of student’s constitutional rights,” they said.

It’s not unusual for students to challenge a college’s disciplinary actions. One key element in limiting the institution’s exposure to liability is including language in the student code of conduct stating that off-campus conduct that affects the well-being of the college community can be cause for sanctions by the college, they said.

Disciplinary sanctions for students’ off-campus behavior are easier to defend if the behavior is expressly prohibited in the code, the presenters said. The wording of the student code of conduct can be critical: Language that is vague or overbroad is at risk of being struck down by a court (see box for examples).

Parolees and registered offenders on campus

“The issue of admitting, monitoring and disciplining students with criminal records is becoming an increasingly serious problem” for community colleges, Kowpak and Lee said.

First, several academic and certificate programs — such as teaching, social work or nursing — require a field component that students with certain criminal records would not be able to fulfill.

However, “it would be inappropriate to ban a student with a criminal record who poses no present danger from on-campus courses that do not involve interaction with vulnerable populations,” they said.

Compliance with the Campus Sex Crimes Prevention Act poses another critical issue, Kowpak and Lee said.

Under the CSCPA, sex offenders must notify the local police that they are registered sex offenders and whether they are students or employees at a community college. In turn, the police must notify the college’s safety office that a registered sex offender is now a member of its campus community. The law also requires colleges to state in their annual security reports where the information regarding registered sex offenders who are employees or students can be found. Finally, the Family Educational Rights and Privacy Act permits the release of information about registered sex offenders on campus.

Under the CSCPA, “the campus police or security office has the responsibility to receive the information, ascertain whether the student poses a present risk to the campus community, and determine whether and how it will monitor the student’s conduct,” Lee and Kowpak said.

Also, when a student is on parole, campus police should communicate with the parole officer to determine whether precautions should be taken, they said.

For community college administrators, the presence of parolees and registered offenders on campus poses the following dilemmas:

  • Should the student be allowed to live in campus housing?
  • Should she be able to enroll in courses that require interaction with vulnerable populations?
  • Should classmates or residence hall residents be notified about the student?

Those are but a few of the issues Lee and Kowpak noted. But there is no one-size-fits-all solution for these issues, they said. Each one must be analyzed on a case-by-case basis, taking the following into account:

  • Nature and seriousness of the offense.
  • Length of time passed since the offense.
  • The student’s age at the time of the offense.
  • Whether the student has been rehabilitated or is seriously attempting to do so by enrolling in college.

Finally, an appeal process must allow the student to challenge a negative decision by presenting his side of the issue, they said. Sometimes, depending on the nature of the offense, college administrators should ask an expert whether or not it is safe to let an offender participate in academic and cocurricular activities, they said.

Access to counsel for student affairs professionals

“Administrators who develop collegial working relationships with college counsel usually find that it helps deter or resolve problems,” they said.

But such relationships come with complications. One critical issue is that sometimes there is disagreement regarding who is the client, they said.

“Attorneys typically represent the college, not individual administrators or members of the board of trustees,” the presenters said. “Attorneys are ethically bound to represent the institution, even if the institution’s interests differ from the interests of a particular individual.”

However, that issue should not stand in the way of involving legal counsel in policy development and implementation, they said. Although the attorneys “do not, or should not, make policy,” they should determine what the policy’s goals are and advise on its potential legal implications, Lee and Kowpak said.

The college attorney should ensure that (1) policies at public colleges protect students’ due process rights and (2) policies at both public and private colleges comply with the student handbook and with essential fairness, they said.

Contact Barbara Lee at lee@smlr.rutgers.edu or Corinne Kowpak at ckowpak@yccc.edu.