Hofstra Law Review


It has become an accepted commonplace that college admissions officers will view applicants’ social media profiles as part of the screening process. Between 25 and 40 percent of admissions employees, according to one annual survey, look at candidates’ social media feeds -- and, by one study, 8 percent of admissions officers at public institutions have made an adverse decision based on something they found on social media. Lost in this discussion is that state universities are bound by the First Amendment in every other speech-based decision they make. Is the admissions office immune from normal First Amendment principles? Should it be? This question has gained new currency as colleges face public demands to “dis-invite” enrollees whose offensive online speech comes to light amid a nationwide racial reckoning.

In this paper, the authors trace the evolution of the “academic freedom” doctrine as it regards university discretion to admit or reject students -- and where students (on rare occasions) have successfully challenged that exercise of discretion. The authors report on the results of their nationwide survey of public universities, finding that none claim to have any written standards governing how admissions officers exercise discretion to review and consider material from social media. This lack of intelligible standards is an invitation for a candidate rejected on the basis of social media speech to lodge both First Amendment and due process claims.

Reviewing social media profiles as a factor in state university admission decisions poses three related concerns. First, admissions officers may be prejudiced (consciously or subconsciously) by learning personal characteristics that cannot legitimately be part of the acceptance decision. Second, admissions officers may draw erroneous conclusions from viewing sarcasm or “inside jokes” devoid of context – or from posts that are not actually the handiwork of the applicants at all. And third, admissions officers may disqualify or downgrade applicants for expressing strong views on political and social issues, inhibiting young people from engaging in political discourse in the only medium readily accessible to them.

The paper concludes that, if social media is to be included at all in the admissions decision, it should be done only with carefully designed and transparent policies that afford rejected applicants a fair opportunity to explain and correct any “lost-in-translation” misunderstandings that have been used to their detriment. The authors recommend a statutory model based on the Fair Credit Reporting Act, which in the employment context requires employers to disclose that they have used a credit report in making an adverse hiring decision and to give the rejected applicant an opportunity to correct erroneous information.

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