‘A Natural Progression’

At the end of last year, Congress directed the Department of Education to make changes to federal financial aid by allowing incarcerated students to access Pell Grants and removing the drug conviction question from the Free Application for Federal Student Aid. But there’s still one more action the Legislature can take to boost access to higher education for those in the criminal justice system -- guiding colleges and universities to remove criminal history questions from their admissions processes.

Senator Brian Schatz, a Democrat from Hawaii, reintroduced a bill at the beginning of August that would do just that. Called the Beyond the Box for Higher Education Act of 2021, it would direct the department to issue guidance and recommendations for institutions on removing criminal and juvenile justice questions from admissions applications.

“Because Pell is coming back into prisons, more people are going to begin their education journey,” said Stephanie Bazell, director of policy and advocacy at the College and Community Fellowship, an organization that helps women involved in the criminal justice system access higher education. “This makes sense as a natural progression, because more and more, we’re going to see that people are going to get a taste for education while inside. And our clients tell us that once they get a taste of that knowledge, they can’t get enough.”

The legislation is the result of extensive conversations between the senator, individuals in the criminal justice system and higher education institutions and associations, said David Hawkins, chief education and policy officer at the National Association for College Admission Counseling.

“Everyone deserves the chance to rebuild their life through higher education, whether they have a criminal record or not,” Schatz said in a release. “This bill pushes colleges and universities to remove criminal history questions from the application process -- a barrier that all too often keeps people from heading back to school.”

About 72 percent of institutions require applicants to disclose their criminal history, according to research conducted by the Institute for Higher Education Policy. In a recent report, IHEP noted that violent or sex offense convictions are most likely to result in automatic denials, but many colleges and universities are also considering drug and alcohol convictions, youth offender adjudications, and pending misdemeanors or misdemeanor arrests in their admissions decisions.

This barrier to admission is especially prominent for students of color, specifically Black and Latinx men, who are disproportionately impacted by the criminal justice system, said Mamie Voight, interim president at IHEP.

If a college or university examines its processes and chooses to remove criminal history questions from its admissions application, the bill provides recommendations on when and how institutions should ask those questions in nonadmissions inquiries, such as ensuring the questions are specific and narrowly focused and giving applicants the opportunity to explain their criminal or juvenile justice involvement.

The legislation doesn’t prohibit institutions from asking about criminal justice information -- but it does recommend they wait to ask until after an admission decision has been made to avoid a chilling effect on applicants with criminal backgrounds.

“The legislation isn’t saying they can't ask these questions,” said Lynn Pasquerella, president of the Association of American Colleges and Universities. “It's saying that colleges should make sure if they ask these questions, that it is tied narrowly to specific requirements. For instance, if an applicant is going into a program where they’re going to be a state-credentialed teacher, then the college has to ask these questions. But it's making clear to students that it won't be held against them in the admissions process.”

According to research conducted by the Center for Community Alternatives on institutions that are a part of the State University of New York system, the rate at which applicants choose not to apply to colleges is three times higher for those who disclose a criminal record than for those who don’t. And considering that around 70 million Americans have some type of arrest or conviction record that would appear on a criminal background check, experts say that this admission policy affects many more applicants than people may realize.

“Just by asking the questions in the admissions process, some students stop filling out the application,” Voight said. “They're coming out of consideration for the institution even before finishing the application because the asking of this question really deters them from continuing to pursue higher education opportunities.”

The guidance in the bill still gives colleges the freedom to change their minds -- it just asks that applicants be notified within 30 days if their admission offer is rescinded due to their criminal history.

‘An Irresponsible Solution’

Still, plenty of institutions believe that collecting criminal justice information on admissions applications is necessary for legal and public safety reasons. Pamela Brown, a former admissions officer at Indiana University-Purdue University Indianapolis, wrote that not considering student discipline as a part of the application review process would be “an irresponsible solution to a problem that requires a more judicious approach.”

“Checking a box stating that the student faced disciplinary actions while in high school does not have to be the end of a student’s dream to obtain a college degree,” Brown wrote.

Colleges collect disciplinary information during the admissions process for at least two reasons, according to Brown: to make a determination about a student’s character in assessing their admissibility and to eliminate procedural obstacles in fulfilling requirements for campus life disciplinary disclosures, since at many institutions, the admissions process and the enrollment process are the same.

Instead, the focus should be on training admissions staff on how to consider criminal justice information when assessing applications, wrote Brown. Schatz’s bill does mandate that the department provide institutions with training and technical assistance, regardless of whether a college or university continues asking criminal history questions in admissions.

“Under well-developed and researched policies, institutional admissions staff could be trained on how to differentiate between those behaviors that would be considered normal teenage behavior versus those actions that, if repeated, would be a potential threat to campus safety,” Brown wrote. “It would be important to emphasize during training the disciplinary review process is not an opportunity for the campus to re-adjudicate the student for past behavior.”

And considering the roles that the criminal justice system and higher education are intended to play in society, it doesn’t make sense for that re-adjudication to occur during the admissions process, as it often does, said Voight.

“The consideration of criminal justice information in the admissions process is really undermining the notion that the justice system rehabilitates people who have served their time,” Voight said. “It also is undermining this notion that higher education is and should be transformative for individuals and society.”

Efforts to move “beyond the box” have been ongoing for years. In 2016, the Obama administration issued a report urging colleges to rethink their policies on using criminal justice information in admissions decisions. And while there has been some movement since then -- the Common Application dropped its criminal history question in 2018, and AAC&U and the American Association of Community Colleges have both urged their members to remove the questions -- passing legislation would add some additional “oomph” behind the policy, said Voight. It would also help keep the policy and guidance consistent as the executive branch changes, noted Hawkins.

“There are many times when Congress has to make its intentions clear to ensure that changing political administrations adhere to Congress’s wishes, and this bill is an example of legislation that attempts to ensure that some measure of consistency and adherence to congressional intent,” Hawkins said.

The legislation makes sense for this moment, with shifts in American attitudes toward issues from marijuana use -- which makes up many of the criminal convictions -- to race relations, said Pasquerella.

“As we see a shift in the standards of our society, we're calling into question the ways in which we have used the criminal justice system,” Pasquerella said. “At this moment of racial reckoning, after what happened to George Floyd, Ahmaud Arbery, Breonna Taylor and so many others, now is the time to look at all of the policies and practices in higher education that contribute to structural and systemic racism.”