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

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