Beyond the criminal history box in admissions

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Blog Higher Education Legal Insights

USA July 7 2016

Roughly 70 million Americans—nearly one in three adults—have a criminal record. Staggering statistics like this are leading a growing number of colleges and universities to go “beyond the box” to reduce barriers to applicants with criminal justice pasts.

New Resources

This past June, the White House launched its Fair Chance Higher Education Pledge. The pledge challenges institutions to limit consideration of “an applicant’s criminal record . . . [to] the proper context, and to engage in admissions practices that do not unnecessarily place higher education out of reach for those with criminal records.” Already, 25 public and private institutions have signed on and pledged to adopt fair chance admissions practices.

In May, the U.S. Department of Education released the Beyond the Box Resource Guide, highlighting issues for higher education institutions to consider when reviewing their admissions policies and practices. The Department also developed the Beyond the Box College and University Self-Assessmentchecklist to guide postsecondary institutions in reviewing policies and procedures.

Legal Considerations

These new resources do not create any new legal obligations, but they emphasize existing issues that can arise during the admissions process.

Perhaps most notably, an across-the-board ban on applicants with criminal records likely violates Title VI of the Civil Rights Act of 1964. Under Title VI, recipients of federal financial assistance (most public and private postsecondary institutions) cannot intentionally discriminate on the basis of race, color, or national origin or implement policies that have an unjustified effect of discriminating on the same bases. The U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor, and the U.S. Department of Housing and Urban Development have cautioned that—due to ethnic disparities in the criminal justice system—certain policies or practices that exclude individuals with criminal records may violate Title VI and other federal and state laws. Automatic bans of applicants with criminal records run an inherent risk of producing discriminatory admission effects.

Recommendations

The U.S. Department of Education recommends considering the following to ensure fair admissions processes:

  • Review questions about criminal history with an eye for necessity and consider at what stage of the admissions process the information is really needed. If requesting criminal justice information for campus safety purposes, consider whether the requested criminal justice information truly furthers campus safety goals, and whether other methods can support a diverse and inclusive environment while still meeting those goals.
  • Narrow tailoring. Use narrowly tailored questions regarding criminal history to ensure a focus on safety as opposed to status. For example:
    • Avoid the use of ambiguous criminal justice terms and overly broad requests about criminal history;
    • Clearly define what information should not be disclosed (e.g., records that have been expunged or sealed);
    • Include a time limit on criminal background information; and
    • Inquire about convictions, not arrests.
  • Be transparent about how criminal history will be used in the admissions process.
  • Provide applicants with the opportunity to explain any issues that may arise.
  • Train admissions personnel on the effective use of criminal history data.

What This Means to You

Institutions need to ensure that their current admissions practices comply with federal and state antidiscrimination laws. Consider reviewing your institution’s use of criminal history information in admissions to support diversity, fairness, and compliance in admissions.

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