By ELIZABETH A. HARRIS
APRIL 9, 2015
David Powers came out of a drug rehabilitation program about 15 years ago hungry to swing his life in a significantly different direction. And that he did.
He went back to college and graduated with a 3.9 grade point average. He was hired at a major accounting firm, worked in senior positions at three hedge funds, and was accepted to the law school at St. John’s University.
Mr. Powers still calls the day of his arrest, when he was pulled off a destructive path, the “best day of my life.”
Halfway through his coursework, while trying to get ahead on his application to the bar, he acknowledged to St. John’s how far he had come. Not only had he been convicted of drug possession, a fact he disclosed on his application, but he had also originally been charged with selling drugs, a fact he had not. St. John’s then rescinded his acceptance — kicked him out — saying that if it had known his complete history, it would never have admitted him in the first place.
Mr. Powers sued the school, taking the case all the way to the state’s highest court, the New York Court of Appeals. Last week, the court handed down the final word in a 5-to-1 decision: Mr. Powers would not return to St. John’s.
The decision came at an uncomfortable moment, as advocates and elected officials pushed to limit the amount of information schools and employers can solicit about an applicant’s criminal background, saying it makes it more difficult to re-enter society after a criminal conviction, and even more difficult to build a full, thriving life.
In 1999, when he was 21, Mr. Powers sold LSD to an undercover police officer and was arrested on charges including possession of LSD and MDMA, also known as Ecstasy, with intent to distribute, according to court documents. But after attending an inpatient drug program, he was able to plead guilty to lesser charges of possession. His record was eventually expunged.
After rehab, Mr. Powers graduated from Monmouth University in New Jersey, and was hired at PricewaterhouseCoopers, a powerhouse accounting firm. There, he became a senior tax associate, before moving on to become head of finance for one hedge fund and director of global taxation for another.
Mr. Power’s lawyer, Roland R. Acevedo, said his client was “the poster boy for rehabilitation.”
“You couldn’t do any better than David,” he said.
Mr. Acevedo would make a good poster boy himself. He was convicted of robbery twice, once in 1978 and again in 1982, he said. He graduated from Fordham Law School in 1996.
While working at PricewaterhouseCoopers, Mr. Powers went on to get a master’s degree in taxation, and then, in 2005, he applied to St. John’s.
On the application, St. John’s asked for details on any criminal charges, as well as findings or pleas of guilt. Mr. Powers wrote that he had been an addict and was sentenced for drug possession, court records show. In an interview, he said that he consulted a lawyer at the time who recommended, when he applied to another law school, that he should include only the final downgraded charges in the application.
Mr. Powers chipped away at that law degree as a part-time student, then began making inquiries about how difficult it would be, given his history, to gain admittance to the New York bar, a requirement to practice law in the state.
In the course of that exploration, he gave a more detailed accounting of his history to St. John’s, including that he had used drugs habitually from ages 16 to 21 and that he sometimes sold them. St. John’s rescinded his acceptance, saying it had an unwritten policy of not admitting anyone with a history of selling drugs.
“The law school application made it clear that dire consequences could result if there was a failure to provide truthful answers,” the Court of Appeals said last week in the majority opinion, written by Judge Sheila Abdus-Salaam. “Given this notice and the school’s unquestionable interest in ensuring the integrity of the future attorneys under its tutelage, the penalty of rescission was not excessive.”
The dissenting judge, Eugene F. Pigott Jr., said St. John’s had not proved that it would have rejected Mr. Powers if it had known his history from the beginning. Judge Pigott added, “Given that Powers had obtained three semesters’ worth of credit and presumably paid tuition to attend, rescission of Powers’s application is, in my view, too harsh a penalty for the alleged infraction.”
Some advocacy groups and elected officials have been pushing in recent years to “ban the box” on job and school applications that inquires about criminal records, saying that because minority men in particular are more likely to be convicted of crimes, the inquiries create racial imbalances.
But Todd McCracken, president of the National Small Business Association, a trade group, testified before a congressional committee last year that criminal background checks were a valuable safety tool.
“Criminal background screening is an important tool — nearly the only tool — that employers have to protect their customers, their employees and themselves from criminal behavior,” Mr. McCracken said in his prepared testimony.
Judith M. Whiting, general counsel at the Community Service Society, which filed a brief in support of Mr. Powers, said the decision would continue to allow academic institutions to make decisions based on criminal records.
“As this case makes clear, it doesn’t matter what your rehabilitation has been since the conviction happened,” Ms. Whiting said. “You could be the most accomplished person out there, and Mr. Powers was pretty darn accomplished, but that need not matter when you apply for higher education.”
A bill in the New York Senate, and a companion bill in the Assembly, would prohibit higher education institutions from asking about criminal history during admissions. And last year, Eric T. Schneiderman, the New York attorney general, reached an agreement with three institutions, including St. John’s University, that said the schools would stop questioning applicants about their arrest records.
Michael J. Keane, the lawyer who represented St. John’s, said the admissions standard at the undergraduate level was different from that of a law school, because law schools had a responsibility to let in only those who were likely to be admitted to the bar. A history of selling drugs, he said, would make entry to the bar unlikely.
“It’s not an issue of fairness, it’s not an issue of second chances,” Mr. Keane said. Instead, this was a case about “misrepresentation by omission,” he said, adding that through a trial and two appeals, St. John’s prevailed.
According to the New York State Bar Association, a felony conviction does not automatically disqualify an applicant from the bar. It is left to the discretion of the court’s appellate division, which admits lawyers to practice in the state.
Mr. Powers said he had spent about $85,000 fighting the decision by St. John’s, in addition to more than $20,000 on tuition, and with this ruling, he and his lawyer said, he appeared to run out of road. Mr. Acevedo said Mr. Powers could not transfer his three semesters of credit to a different law school without a letter of good standing from St. John’s, which it declined to provide.
Mr. Powers’s financial career has stalled as well, because now his challenges are twofold. In addition to his criminal record, he has a much more public reputation. He said he applied to over 200 jobs in the past 18 months at hedge funds and related businesses but had had to cobble together a living with a real estate license and by preparing tax returns.
“This ordeal, in a sense, became more damaging to me than the original charges,” Mr. Powers said. “Anyone can Google me and find out about this.”