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This Guide Challenges Colleges’ Tendency To Ask Students About Criminal Record

Education secretary John King poses for a photo with students who have incarcerated or formerly incarcerated parents as well as people who are working on their reentry from the prison system. They met at a roundtable on how schools can better serve students with parents who are currently incarcerated or beginning reentry at Benjamin Banneker Academic High School. CREDIT: CASEY QUINLAN
Education secretary John King poses for a photo with students who have incarcerated or formerly incarcerated parents as well as people who are working on their reentry from the prison system. They met at a roundtable on how schools can better serve students with parents who are currently incarcerated or beginning reentry at Benjamin Banneker Academic High School. CREDIT: CASEY QUINLAN

On Monday, the U.S. Department of Education released a guide for colleges that will help them decide how to ask questions about someone’s criminal justice record — and that raises the issue of whether colleges should be asking for that information at all.

The department said it is concerned about the talent lost when a university lets a student’s criminal justice record affect their access to education.

“We’ve been committed to these efforts because we know that for a nation to lead in the 21st century, we need the full talent and energy of every American,” said Education Secretary John King during a press call Monday morning. “We believe in second chances. That’s why this administration is also making it a priority to help students involved in the criminal justice system benefit from the second chances an education can make possible.”

According to a survey released last year by the Center for Community Alternatives, 89 percent of colleges use disciplinary records and criminal justice records to influence admissions decision-making, but 75 percent don’t have a written policy on how to handle that information. The guide emphasized that there hasn’t been conclusive research showing that the decision to ask about a student’s criminal justice history during admissions is tied to better campus safety.

“We believe in second chances.”

As the guide notes, many students involved in the criminal justice system are lower income people and people of color, and universities should consider racial bias in the criminal justice system. A 2012 paper published in the Journal of Legal Studies shows racial bias in criminal sentencing and plenty of research shows people of color are disproportionately arrested and imprisoned and face harsher school discipline.

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“Colleges and universities using disciplinary history as admissions criteria should consider how to design admissions policies that do not have the unjustified effect of discriminating against individuals on the basis of race, color, national origin, sex, religion and disability,” the guide reads.

The guide references the fact that the use of criminal justice records could qualify as discrimination in other contexts, such as job searches and housing searches — but stops short of outright saying that colleges are engaging in discrimination by asking applicants questions about their criminal history.

When asked on the press call whether the department is asking colleges and universities not to ask questions about involvement in the criminal justice system at all, King demurred, replying that there is no “one-size-fits-all” solution. But the president of the University of California, Janet Napolitano, praised the fact that the university system does not ask any question about applicants’ criminal backgrounds.

How College Admissions Are Affected By Racially Biased School DisciplineEducation CREDIT: AP Photo/Jim Mone College admissions take a crucial factor into account that could be creating…thinkprogress.orgThe guide does provide several suggestions for universities that do want to ask questions about an applicant’s criminal justice history. It suggests making questions about an applicant’s record narrower — for instance, if a university is primarily interested in finding out if someone has a history of sexual violence, the university should tailor the question accordingly.

The application can also define what doesn’t need to be included — someone whose felony conviction has been expunged, sealed, or overturned, for example, would be able to respond “no” to a question about whether they were convicted of or pleaded guilty to a felony in the past five years. Guidance from the Equal Employment Opportunity Commission also makes it clear that arrests by themselves aren’t sufficient for an employer to establish with certainty that someone engaged in a criminal act, so the department suggests colleges and universities steer clear of asking about arrest records and focus on convictions instead.

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The guide also suggested institutions of higher education get feedback from students who have been involved in the justice system to get a sense of how well those students are doing academically and provide students with financial aid counseling, since their criminal justice record may prevent them from accessing federal financial aid depending on the conviction.

The department refers to universities such as New York University as an example of improvements in admissions policies on questions about involvement in the criminal justice system. Admissions officers no longer have that information during the first round of reviewing an application, for instance.

Public universities may be more inclined to take the department’s advice. Inside Higher Ed’s annual survey of leaders in admissions shows that 11 percent of admissions leaders at public universities said universities should not ask any questions about students’ legal or disciplinary records, while just 1 percent of admissions leaders at private universities said the same. When asked whether universities should limit the scope of questions and maybe restrict them to recent or violent incidents, 46 percent of public universities said yes compared to 30 percent of private universities.

Update: The Common Application will continue asking of students have been found guilty of misdemeanors or felonies but won’t ask about other criminal justice details, the Associated Press reported. The application will also continue to ask for students’ disciplinary records for student misconduct in high school.