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Risk & Compliance: Legal Considerations in Admissions

By Net Assets posted 6 days ago

  
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Risk Management |

Schools must be careful to collect neither too much nor too little information about students and families before they enroll.

Article by Grace H. Lee and Ashley Sykes, Venable LLP

From the March/April issue of Net Assets magazine

​​​​The admissions process at independent schools can be an exciting opportunity to showcase the school, attract diverse applicants and increase enrollment. All too often, however, a school discovers something about an already enrolled student that may have impacted its decision to admit the student in the first place. Schools must manage the admissions process to allow for informed decisions about prospective students while mitigating potential legal risks. This includes clearly communicating the school’s culture, mission, program and expectations to the family, as well as gathering relevant and reliable information about the student.

While test scores and grades are important elements of the admissions decision, schools must also examine whether the student might pose a risk to other students, whether the student can be expected to comply with school policies and conduct standards, and whether the school can provide any accommodations that a student may need.

Consider the following issues when developing admissions policies and procedures.

Applicant Vetting

While students are under the school’s supervision, the school is acting in loco parentis (legal terminology meaning “in the place of the parent”), which means that schools owe students a heightened duty of care to ensure their safety.

While students are under the school’s supervision, the school is acting in loco parentis (legal terminology meaning “in the place of the parent”), which means that schools owe students a heightened duty of care to ensure their safety. As schools are making student enrollment decisions, schools must exercise that duty of care by considering whether each new addition to the community presents a risk to other students, parents and faculty. For this reason, it is important that schools thoroughly vet applicants and their family members before making enrollment decisions.

Strategies include:

  • Get a complete education history. Make sure to obtain the complete dates of enrollment (month and year) at all the applicant’s previous schools to limit any gaps in the applicant’s academic history. If there are gaps, inquire into them, as they may reveal a student’s early withdrawal from a prior school for conduct issues such as bullying or sexual assault. Simply asking for prior school enrollment may not reveal an applicant’s early separation.
  • Obtain recommendations from the applicant’s past and current teachers. Many schools require recommendations from only current teachers. At the time applicants are completing admissions applications, however, their teachers for the current year have only observed them for a few months. For a more complete picture, require students to also include teacher recommendations from the preceding school year, as those teachers will have more experience and insight about the applicant’s background.
  • Ask school administrators for information. Teachers rarely know a student’s full story. Ask past school administrators to provide information about the reason for the applicant’s departure, whether the student is allowed to return, and whether the applicant’s record contains any disciplinary history.
  • Consider checking the applicant’s public social media presence for information that suggests that the applicant may pose a safety risk to the school community.
  • Consider vetting applicants’ parent(s) and/or guardian(s), as they too are part of the school’s community and if not properly vetted, could pose a risk to other students. Consider checking parents’ criminal history and sex offender status before making a final enrollment decision.

Schools should also take steps to ensure that the information obtained during the application process is truthful and accurate. The application form should authorize the school to obtain student records as well as test scores, and require that test scores, grades, reports and recommendations be submitted directly to the school, not through the applicant. Parents/guardians should release their right to view the application documents including teacher recommendations. The signatory on the application should agree that false, incomplete, omitted or misleading information provided on the application or during the application process may result in a refusal to admit or dismissal in the event of admission.

Disability Discrimination and Accommodations

Title III of the ADA requires independent schools to make reasonable accommodations for applicants with disabilities as long as it does not impose an undue burden on the school or fundamentally alter the nature of the school’s program.

The investigation and consideration of applicants’ physical and mental health during the admissions process is another area of legal risk. Many admissions officers consider asking about students’ health on the admissions application to help determine if and how the school will be able to support the applicant’s academic success. If information regarding an applicant’s disability weighs on the school’s enrollment decision, however, the school may risk violating the Americans with Disabilities Act (ADA).

Title III of the ADA requires independent schools to make reasonable accommodations for applicants with disabilities as long as it does not impose an undue burden on the school or fundamentally alter the nature of the school’s program.

Who Qualifies for Protection?

Applicants who have a physical or mental impairment that substantially limits one or more major life activities (or have a record of such an impairment or are regarded as having such an impairment) may qualify for protection under the ADA. A disabled applicant is qualified for admission if the applicant can meet admissions requirements with or without a reasonable accommodation. In other words, the school is not required to lower or alter admissions standards as an accommodation for an applicant with a disability. A reasonable accommodation is appropriate to help level the playing field for applicants with a disability but should not provide an unfair advantage.

Pre-Admissions Inquiries into Disability

The ADA Technical Assistance Manual states that schools may not make unnecessary inquiries into the existence of a disability in the admissions process. Schools may ask only for information that helps them determine whether an applicant is able to participate in the essential components of an academic program, or whether an applicant is entitled to a reasonable accommodation. For example, a school might ask whether an applicant will need assistance and/or modifications to the school’s programs and services in order to fully participate in the program, posed as a yes or no question, with instructions to contact a designated school administrator to make a request for assistance. Like any other part of the admissions process, the school should ask questions in a consistent manner.

Before approving your applications for the upcoming admissions cycle, consider whether you really need to ask these kinds of questions during the admissions process, or whether they can wait until after an enrollment offer has been made.

What Is a Reasonable Accommodation?

If an applicant requests an accommodation, the school has an affirmative duty to engage in an interactive process to determine whether it can make a reasonable accommodation to allow the disabled student to participate in the school’s program. An accommodation is not reasonable if it would fundamentally alter the nature of the program or cause undue hardship. Schools must make individualized assessments of such requests.

These are just some of the considerations in the admissions process.A thorough process with consistent policies and practices will help the school make the most informed decision while mitigating risks and potentially avoid legal claims.

Grace H. Lee is a partner at Venable LLP and NBOA legal counsel. Ashely Sykes is an associate attorney at Venable LLP. 

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