The Journal of College and University Student Housing - Volume 44, No. 3 - 21

Background Checks in Housing

Custer, 2016). take, for example, the university of north Carolina system, which since 2006
has required all students to answer questions
about criminal history on admissions applications and conducts follow-up CBCs on some
6
applicants. in such a setting, the plaintiff
could argue that the use of additional CBCs on
housing applicants after the initial admissions
vetting is superfluous and therefore does not
meet the standard of a legally sufficient justifi7
cation for operating an effectively discriminatory practice. the defendant must consider the
role of its CBC housing policy in the context
of other campus policies with similar goals
to determine if the CBC policy is an essential
practice in its own right.
for the sake of argument, let us now
assume the defendant prevailed at step two,
and the plaintiff must next meet the burden of
proof on step three. the plaintiff's final task
is to prove that another practice that has a less
discriminatory effect could serve the univer8
sity's legitimate interests. in lieu of CBCs, the
plaintiff could make a compelling argument
for the implementation of other evidencebased strategies for campus crime prevention,
such as the programs endorsed by the national
institute on alcohol abuse and alcoholism
for reducing high-risk drinking behaviors of
college students (u.s. Department of health
and human services, 2015), bias intervention
training (see Katz & moore, 2013), and other
programs for preventing sexual and dating
violence (see Degue et al., 2014). these programs, the plaintiff would argue, are appropriate practices for the university to adopt, are
more effective in preventing campus crime,
and would not have a disparate impact on students from a protected class.

If the use of CBCs opens colleges
to federal discrimination liability,
why do many implement the
policy? One explanation may be
that state laws require it .

taken together, these arguments undermine a university's rationale for the use of
CBCs in campus housing when the practice
is shown to have a discriminatory effect, and
under the new discriminatory effect test, a
plaintiff can argue these points in court.

State Policies
if the use of CBCs opens colleges to federal
discrimination liability, why do many implement the policy? one explanation may be that
state laws require it. in this section, i present
findings from my review of state policies
related to justice-involved students in campus
housing. first, i searched research literature
and news reports. second, for each of the 50
states, i searched the higher education chapters of state statutes and the laws, regulations,
and policies of university higher education
systems and coordinating boards, where applicable. i examined system-level policies because
they operate at a higher regulatory status than
the policies of individual institutions within a
state. results are clustered by policies that prohibit certain students from living on campus,
policies that require institutions to consider
criminal history in making housing decisions,
and polices that allow for institutions to consider such information.

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The Journal of College and University Student Housing - Volume 44, No. 3

Table of Contents for the Digital Edition of The Journal of College and University Student Housing - Volume 44, No. 3