Zero Tolerance and the Fifth Amendment

Question.  My son started pharmacy school recently.  In the materials sent by the college, there was a mention of the school’s zero tolerance program, that if the applicant had been convicted of any crime there was no use sending in the application. On the application, there was a space for a “yes” or “no” to be checked after the question: “Has the applicant ever been convicted of any crime, except for a traffic violation?”

I (the parent) told him to answer “no.”  The incident—a DUI (alcohol) arrest–took place more than two years before he filled out the application.  He was punished by me and the court; after this wake-up call, he turned his life around.  And—here is my legal question—wasn’t it a violation of his Fifth Amendment right against self-incrimination to have to reveal this?

As you can guess, the school of pharmacy did a background check that was not completed until after classes started (delayed due to computer glitches).  Now, the college has informed my son that it has begun the process to expel him.


The first thing I did upon receiving the question above was to get more facts from both the college and the parent.  The college was seeking to expel the young man on the basis of having lied on his admissions application, not for the DUI.  This made the case harder.

But not impossible.  I told the parent to engage counsel as quickly as possible.

Was this a Fifth Amendment violation?  The 5th Amendment requires the government to prove a criminal case against the defendant without the aid of the defendant as a witness against himself.

First, the college will claim that it is not the government.  True.  However, in cases regarding funding and other criminal matters, entities such as state run universities and colleges have been found to be so closely tied to the government as to be an agent of the same.  I think the college will lose here.

But is this association so great that it provides the college with police powers?  Actually, yes.  The power to punish or sanction—suspend or expel—has been found to be analogous enough to be comparable with police powers.

Second, the college will claim that this is not a criminal matter.  This argument should also fail.  The college will say that it is not a court of law.  Courts have extended the venue from custody by any entity with police powers to “giving testimony in a trial or other legal proceeding….”  The application process is most certainly quasi-judicial in that it promises action for acts that are false and/or misleading.  Expulsion surely ranks among the varied definitions of “punishment” or “sanction” as defined by the courts.

Third, the college will claim its application is analogous to a job application in the private sector.  In the work environment, especially where there is little to no government funding involved, it is almost always legal to ask these questions on an employment application.  Especially in a pharmacy, asking questions about prior criminal acts and terminating those who lie about such acts has been upheld more often than thrown out, the thought being that we want to strongly prevent access to controlled substances by those likely to divert, steal, etc.  If the young man’s crime had been linked to drugs, his case would likely fail.

But since his crime was alcohol, we return to the question: is the college’s expulsion policy a violation of the young man’s Fifth Amendment right against self-incrimination?  The answer is “I do not know.”  In the three areas mentioned above, it is easy to find cases where courts have gone both ways.  But it seems that it can be argued strongly that it is a violation.  The application requires information to be provided that subjects the applicant to “criminal prosecution” in the form of expulsion or denial of admission (though denial is much harder to fit the description of punishment).  Forcing the applicant to reveal this information has the appearance of ignoring that person’s right to not incriminate himself.

This argument is strengthened by the fact that the college has—and employs—other means to ascertain this information: the detailed background check.  If this were not available, the case would be harder.  That the check was delayed until after classes had begun is an issue for the college, not the applicant.  If the expulsion holds up, the young man should be able with little problem to get the return of all tuition and fees paid.


A short editorial moment.

I do not agree with the growing trend of colleges (not just pharmacy) to adopt this “zero tolerance” attitude toward applicants and those who engage in any “youthful indiscretion” while in a professional program.  We as a people are as much the result of our mistakes and foibles as we are our good grades and community service.

Should we stop listening to Elvis Presley because he misused and abused controlled substances?  Should we eliminate George Washington from the history books because he was a prolific philanderer?  While I do not condone these activities, I merely suggest that only opening up the professional path to the unsullied will deny us many excellent professionals, persons who have as much, if not more, to offer because of their mistakes.

I have represented pharmacy students with four state boards of pharmacy and one college of pharmacy. In all the cases, I managed to persuade the boards and college to keep the person licensed or in school.  One is now a department head in a university hospital, two are PICs, and the others are licensed and working.

I am lucky that I was rarely caught and never caused harm when I engaged in “youthful indiscretions.”  I am grateful also that most of them occurred as they helped me who I am.  A zero tolerance policy in my day and this attorney/pharmacist/(retired) college professor would not be writing this blog.

How should these youthful indiscretions be handled?  By looking at the rest of the application and seeing what else the applicant has to say about him or herself.  And then by an in-person interview to judge that the indiscretion has indeed been used by the applicant to better him or herself.

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