Moving Past Checking the Box

Education Department urges colleges to rethink whether they should ask applicants about criminal and disciplinary records -- and to be more nuanced when they do so.

May 9, 2016

The U.S. Education Department will today join groups that have been urging colleges that ask applicants about criminal justice and other disciplinary records to reconsider whether the questions are necessary and, if they are, whether they are being asked in ways that are unfair.

The department is releasing a report, "Beyond the Box," highlighting evidence that asking such questions can depress applications from those who had encounters with the criminal justice system as youth that may result from bias in the criminal justice system against young black males, or that may reflect behavior students have long outgrown.

The report does not say colleges that ask these questions are engaged in illegal discrimination, but it does note that the U.S. Departments of Labor and Housing and Urban Development, in the contexts of criminal background questions on job or housing application forms, have raised questions about the legality of broad questions that are used to reject people without attention to whether a specific individual poses a threat today.

"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," says the report. "An estimated three out of four colleges and universities collect high school disciplinary information, and 89 percent of those institutions use the information to make admissions decisions."

The report also notes that student safety is an important concern to many colleges -- and says none of the recommendations in the report conflict with current federal laws about preventing and reporting crime on campus.

The Education Department report doesn't rule out the idea that there may be applicants who, due to their criminal or disciplinary background, colleges may not want to admit on safety grounds. But the report repeatedly notes reasons why applying blanket assumptions about those who "check the box" can be unfair. The report references numerous studies about bias against black students in schools and the criminal justice system, but the Education Department also references issues that can apply to all young people.

"Colleges and universities should also consider our improved understanding of the developmental process through young adulthood," the report says. "Recent behavior and neuroscience research shows that young adults are developmentally distinct from older adults and the brain’s capacity for mature decision making continues to evolve well beyond the teenage years. Given collateral consequences of justice involvement are particularly severe for young adults, institutions of higher education can assist young people who may have gotten off track in their younger years with their transition to productive adult lives. Colleges and universities that give justice-involved youth opportunities to earn a postsecondary degree or training certificate and otherwise enact policies that can help reduce unnecessary and overly broad collateral consequences of a criminal record … contribute to more positive outcomes for young people and their communities."

The report will be released today by U.S. Secretary of Education John B. King Jr. at an event at the University of California at Los Angeles. An advance copy was obtained by Inside Higher Ed.

What the Department Recommends

The department is making a number of suggestions to colleges:

  • Colleges that collect information about criminal and disciplinary backgrounds should "determine whether this information is necessary to make an informed admission decision and whether it would be appropriate to remove these questions from the application." The report notes that plenty of colleges don't ask these questions.
  • Colleges that wish to ask such questions should consider doing so after an initial decision has been made about admission to avoid a "chilling effect" on applicants whose backgrounds may not be relevant to admissions.
  • Colleges that ask such questions should be open about how the information will be used.
  • Questions should be "narrowly focused." For example, the department recommends asking about convictions and not arrests, specifying the types of crimes or disciplinary infractions that may be considered, and giving a specific time period for actions covered by the questions.
  • Colleges should be sure that anyone who checks a box indicating a criminal or disciplinary record has a chance to explain the circumstances.
  • Colleges should assure that admissions personnel are trained to analyze such information.

The recommendation on training points to what some say is a weak spot in the admissions processes of colleges that ask questions on criminal and disciplinary records. A report released last year by the Center for Community Alternatives found that only 25 percent of colleges that ask these questions have formal, written policies on how to use the information, and only 30 percent of colleges have trained their admissions staff to interpret disciplinary violation findings.

The absence of such policies and training greatly increases the chances, the report argued, that the question can be used in ways that weed out applicants who should actually be encouraged to enroll.

Growing Campus Debate

The Education Department report comes at a time of growing debate over whether the questions belong on applications. New York University has asked the Common Application if it can provide evidence that asking these questions has a benefit. In addition, NYU has shifted its use of the question so that in the first round of reviews, admissions officers do not know if a student has checked the box. (The Education Department report specifically praises the NYU shift, although some students on the campus want the university to completely drop the question.)

At Princeton University, some students have been pushing the university to drop the question, arguing the university could benefit from more students with experience in the criminal justice system.

In light of these debates, Inside Higher Ed asked admissions deans for their views on these issues as part of an annual survey of leaders in admissions.

Generally, admissions leaders at private institutions were far more supportive of these questions than were those at public colleges.

Applicant Disciplinary Records: What Policy Is Desirable?

Statement % Yes From Public Higher Ed % Yes From Private Higher Ed
Institutions should not ask any questions about applicants' legal or disciplinary records. 11% 1%
Institutions should limit the scope of such questions (for example, asking only about recent or violent incidents). 46% 30%
Institutions should ask all applicants to report all disciplinary or legal infractions. 43% 68%

David Hawkins, director of public policy and research at the National Association for College Admission Counseling, said he had not seen the final report, but that the Education Department consulted with NACAC about the effort. "The emphasis on guidance and education is a direction we are fairly comfortable with, as we are sensitive to the concerns the Education Department is trying to address," he said.

Vivian Nixon, executive director of the College & Community Fellowship, an organization that helps women move from incarceration to a college education, will be at Secretary King's announcement today. She ended more than three years behind bars -- over crimes she committed to get money for her past addiction to illegal drugs -- in 2001. She said that she considered applying to a college that asked many questions about her criminal record, and that she abandoned the application. She instead re-enrolled at Empire State College of the State University of New York, where she had taken some courses without much success before going to jail, and which allowed her to return without questions about her past.

"I have dealt with hundreds of students, and those questions are traumatizing, and I understand that," she said. Nixon said it was "critically important" for colleges to help such students -- and not to discourage them.


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