Running head: THE EFFECT OF INQUIRING ABOUT CRIMINAL HISTORY IN

COLLEGE APPLICATIONS 1

The effect of inquiring about criminal history in college applications

Alia McAdams

The University of South Carolina

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A study done in 2015 showed that of 2,924 individuals with felony convictions

that began applications for the State University of New York (SUNY) Schools, two thirds

of them failed to complete the application after reaching the question inquiring about

their criminal history (U.S. Department of Education, 2016). These numbers include

individuals who have served their time, those who have moved past their criminal

activity, and individuals who are wrongly convicted. This study caused the SUNY system

to ban the question on their application. News of this change has brought nation-wide

attention to the ethical dilemma of whether or not higher education institutions should

have these questions on their primary applications.

Should higher education institutions join the movement to Ban the Box and

retire the question inquiring about applicants criminal histories? There are many facets

to be considered before forming an opinion on the topic. This includes asking how the

process may be detrimental to applicants who were convicted before they had the

opportunity to fully develop and mature. Other facets would include understanding the

risks with how admissions processes are currently run, and how consideration of criminal

histories might be contributing to the nations racial disparities. A fourth facet to consider

is how higher education institutions might benefit from the information gained from

having the question. Higher education is not alone in the consideration of this change,

and it is notable to see the changes being made in the employment process. If the change

comes to fruition the alterations can transpire in many ways, such as changing the

question or changing the admissions review process. At a time when around 70 million

American citizens have been involved in the criminal justice system it is evident that
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banning the box can have many positive effects on the nations economy and social

issues (Center for Community Alternatives, 2010).

Some argue that it is unethical to deny an applicants admission to college due to

potentially minor infractions that have occurred before a student has matured (Jaschik,

2012). Many applicants with criminal records have criminal histories dating back to their

adolescence. While the U.S. government begins recognizing individuals as adults by the

time they are 18 years old, young adulthood does not begin until an individual is in their

twenties. In fact, recent behavior and neuroscience research shows that young adults are

developmentally distinct from older adults and the brains capacity for mature decision-

making continues to evolve well beyond the teenage years (ED, 2016, p. 7). The

consequences of the legal system have harsh effects on young populations. Being denied

admission to higher education institutions based on convictions adds to the negative

repercussions on their development (ED, 2016). By banning the box from the admittance

decision making process, university systems can help young people get back on track for

a successful future by providing the students with the education and tools necessary to

continue their growth (ED, 2016).

At this point in time, nearly 700 colleges and universities use the Common

Applicationwhich in 2006 began requiring students to indicate if they have been

adjudicated guilty or convicted of a misdemeanor, felony or other crime (ED, 2016, p.

10). Additionally most schools that keep the box require additional documents from the

applicant including letters of explanation and letters from the applicants corrections
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officer (CCA, 2010). Not only is this harmful for the students, but at a time when many

colleges and universities are promoting campus diversity questions about criminal

history create a significant risk of alienating potential applicants while also unnecessarily

limiting an institutions applicant pool (ED, 2016, p. 12). The discrimination against

students with criminal histories is in large part due to the lack of training on the subject

within admissions offices. To be able to fairly assess the different between a violent

crime and a misdemeanor or to be able to put aside personal biases, some form of training

needs to be established.

There are wild discrepancies between justifications of specific charges, the age of

adulthood, and state laws, which may negatively impact individuals applying for higher

education institutions. This is especially credible when admissions officers are not trained

on the differences. There are vital differences between felonies, misdemeanors, and non-

criminal violations. The rationalization becomes more varied when comparing from state

to state (CCA, 2010). Due to the major growth of misdemeanor arrests within the past

few decades, more than 100 million Americans have criminal history records.

Misdemeanor cases have more than doubled since the 1970s and now account for 10.5

million cases per year (CCA, 2010, p. 23). With the rate of arrests growing and the rate

of crime decreasing, there are clearly flaws in the system, which admission counselors

should comprehensively understand. In terms of age, most states charge individuals as

adults at the age of 18, but in New York people are tried as adults when they are 16 years

old (CCA, 2010). State laws differ in severity of the charge as well. In Delaware,

students can be criminally charged with the crime of offensive touching, which implies

some type of sexual assault but typically involves adolescent behavior such as bra
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snapping or patting someones behind (CCA, 2010, p. 24). Similarly In New York

State the theft of a bicycle from a garage attached to a house is classified as a violent

crime, even if the theft did not involve actual violence or any interaction with another

person, and did not penetrate the actual home itself (CCA, 2010, p. 24). The only way to

sort through the discrepancies in the admissions process is to have well-trained staff

within the office who are knowledgeable on the differences and can utilize the knowledge

to make educated decisions.

One in three adult black men has a felony conviction, twelve percent of black men

between 16 and 34 are incarcerated, and more than twice that number are on probation or

parole (CCA, 2010). Continuing the pattern, in 2011 60% of inmates were minorities, and

black men born between 1960s and today are more likely to spend time in prison than

have earned 4-year degrees (ED, 2016). Black men are put in jails 6.5 times more than

white men and there is research that shows illegal drug use does not differ between

whites, black, and Hispanic, but 62% of individuals convicted for these crimes are black

(CCA, 2010). Hyper-aggressive law enforcement in low-income communities of color

has led to the overrepresentation of African-Americans and Latinos among those with

criminal convictions (CCA, 2010, p. 4). These facts support the claim that there is racial

disparity in the criminal system. The disparity effects the admissions processes when

higher education officials are taking criminal convictions into account as a negative

factor when deciding who to accept into their institutions. Because so many people of

color are caught in the criminal justice system, the impositions of institutional barriers

such as admissions policies that screen out people with a criminal record constitute a de
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facto return to race-based discrimination in higher education (CCA, 2010, p. 26).

Because of these facts, when asking about criminal history on the application, admission

policies cannot protect against the effect of discrimination based on color, race, national

origin, sex, religion, and disability (ED, 2016).

What positive impacts could universities have if they continue to ask about

criminal histories on their applications? One argument is that the universities ask as a

safety concern, and with the knowledge they are keeping the campus safe. This claim has

been proven false by research. In fact, no link has been established between having a

criminal record and posing a risk to campus security (CCA, 2010). Along these same

lines, individuals who have not committed a crime in seven years or more are just as

unlikely to commit a crime as those who have never been convicted (CCA, 2010).

According to the U.S. Department of Education (2001) the overall rate of criminal

homicide at colleges and universities was .07 per 100,000 students compared to a rate of

14.1 per 100,000 young adults in society at large (CCA, 2010, p. 5). This goes to show

that campuses are generally safe places whether previously convicted individuals are

accepted or not.

Another argument for continuing to ask about criminal history is that if the

university is aware of the convictions, the student affairs professionals can provide more

support for the accepted students. A study found that more than half of the schools that

ask about criminal history offer support or supervision for some of the students with

criminal records (CCA, 2010). Furthered support is crucial (ED, 2016). Varied levels of

academic preparation, feelings of isolation, and insufficient social and personal supports
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all play a role in student performance and persistence in higher education (ED, 2016, p.

29) and these factors are often heightened amongst the population at question.

Continuous support can be proven very successful. USC Berkeley has an underground

scholars initiative which focuses on helping individuals with criminal histories succeed

and transition well by providing peer counseling, scholarship help, and additional

resources. On many other campuses, campus support services, such as TRIO offices, are

already in place and accustomed to working with group from disadvantaged backgrounds

such as first-generation students and low income students that may overlap with justice-

involved individuals (ED, 2016, p. 33). From the career perspective, career counselors

can only inform students of potential employment barriers if they are aware of the

situation. Keeping the question inquiring about criminal histories on the application can

prove to be beneficial to students.

The current debate over the role of the institution in keeping students with

criminal histories out of sports involvement might have an effect on if institutions remain

aware of the students criminal histories. In June 2016 the South Eastern Conference

(SEC) was the first conference to announce that they would no longer accept transfers

from other schools with history in sexual or domestic violence (New, 2015). Also, USA

Swimming recently banned a former Stanford University swimmer convicted of sexual

assault. A petition signed by 130,000 people urges the National Collegiate Athletic

Association to adopt a similar stance (New, 2016). Many people are now moving to

request that the NCAA plays a part in keeping criminals from playing college sports. In

2014 Democratic New York Senator Kirsten Gillibrand made a statement requesting that

the NCAA create rules barring athletes convicted of sexual assault (New, 2016).
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However, the NCAA claims that it is not the organization's responsibility to decide who

can enroll in colleges or who can play sports there and gives the responsibility to the

colleges (New, 2016). If the debate moves in the direction of agreeing with the NCAA in

this matter, colleges may have another reason to be aware of their students criminal

histories.

Not only is the subject of criminal history a hot topic in the world of higher

education, but the U.S. Department of Labor (DOL) is asking employers to change their

perspective on the issue as well. Because of the racial disparity issue, companies and

institutions are in violation of federal antidiscrimination laws if they exclude individuals

from opportunities solely on account of their criminal record without taking time to

assess age and nature of the offense (ED, 2016). The U.S. Equal Employment

Opportunity Commission (EEOC) is currently investigating the use of criminal history as

a violation of Title VII of the Civil Rights Act of 1964, which prohibits discrimination in

employment (ED, 2016). The EEOC states that employers are more likely to be objective

when assessing past criminal histories if they learn about the issue after they learn about

the applicant qualifications and experiences and skills. Due to this information The DOL

and the EEOC urge employers to be use caution and detail when asking questions

regarding applicants criminal histories. The departments also recommend the companies

to ask the question after making their hiring decisions. As of now, over 100 U.S. cities

and counties have adopted fair-chance-hiring practices and policies to reduce barriers of

employment for people with criminal histories (ED, 2016p. 20).

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Higher education institutions may face legal implications if they are not careful

not to infringe on antidiscrimination laws when selecting applicants. In doing so it is

crucial to form an understanding of whether the criminal history is relevant to the

admission into college as well as what information should be asked (ED, 2016). If a

university decides to reject an applicant based on their criminal history, a specific process

must be implemented in order to avoid infringing on the individuals fourteenth

amendment rights. The EEOC advises companies and institutions to utilize individual

assessment when excluding candidates and applicants based on criminal histories in

order to avoid violating the fourteenth amendment due process rights. In this process the

institution must first notify the applicant that this is the reason they are being rejected.

Next, admissions officials must give the applicant the chance to explain the situation or

show that they should not be rejected based on these circumstances. It is then up to the

employer or admissions counselor to consider the circumstances and decide if the

situation warrants an opportunity to reconsider the original decision (ED, 2016). As of

May 2016 only two thirds of schools alert the student that their criminal history was the

reason for denial (CCA, 2010). In order to avoid legal issues, admissions offices need to

take this information into account and make changes accordingly effective immediately.

There are many opinions on whether or not to Ban the Box from college

applications, but the big question is, what would the next step be? How could this change

affect higher education and student affairs and how are these changes to be implemented?

The main recommendation from the Department of Education is to rid of the question all

together. Instead, admissions could implement a multifaceted system by collecting and

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assessing academic records, test scores, references, high school diplomas, and essays or

interviews in order to receive a fully informed judgment of someone's character (ED,

2016). If this is impractical the next suggestion is to make the question more specific.

Creating a more specific question could limit the number of students discouraged by this

aspect of the application. Another suggestion is for institutions to consider only

contemplating felony conviction that occur after an applicants 19th birthday (CCA,

2010). This would answer the concern of development. Alternatively, admissions could

limit the question to ask about convictions within the past five years. The University of

New York recently changed their question on criminal activity to be more specific. It

now reads, within the last seven years after the age of 14, have you ever been convicted

at trial, or pled guilty to, a criminal offense involving violence, physical force or the

threat of physical force, a sexual offense, possession of a weapon, kidnapping, arson, or

any offense which caused physical harm to another person? (Jaschik, 2016). For

institutions that continue to acquire the information, it is recommended that they offer

support and advocacy to students who are admitted to help them succeed.

The next recommendation is to train the admissions officers to create informed and

unbiased admissions decisions. As of 2010, less than half of the schools that collect and

use criminal justice information have written policies in place, and only 40 percent train

staff on how to interpret such information (CCA, 2010, p. i). These schools need to

create fair admissions criteria and policies and avoid making blanket judgments for all

crimes. Finally, in these ever changing times universities need to re-evaluate the campus

policy on accepting students with criminal histories from time to time to keep the policy
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up to date and relevant. Overall, the Education Department has been pushing colleges to

avoid policies for incidents that they have moved past (Jaschik, 2016).

Banning the box would be beneficial for the community nationwide. Currently,

the populations of U.S. prisons are the largest in the world. U.S. prisoners account for

25% of the worlds current inmates (ED, 2016). The substantial number of individuals

affected by the system is continuously growing. Demonstrating this, studies show that

from 1973 to 2014, the average state and federal prison population in the United States

rose steadily from about 200,000 to slightly over 1.5 million (ED, 2016, p. 4). Opening

doors to those with criminal records promotes public safety because it gives people who

may have created a crime the opportunity to lean, enhance critical thinking skills, and

enter stable employment fields. (CCA, 2010). In fact, prisoners who receive an education

are forty percent less likely to return to prison than those who do not however, the

existence of a criminal history can become a barrier to individuals long after they have

paid their debt to society (ED, 2016, p. 4) including decreasing their chances at being

admitted at higher education institutions. Therefore, it is crucial to ensure that admissions

policies do not disadvantage criminals who have served their time (ED, 2016). At a time

when many schools do not have the training or the resources to provide an unbiased and

well-equipped admissions process banning the box from applications is the best option to

ensure that those with criminal backgrounds to receive the education, support, and other

opportunities vital in the road to success (ED, 2016).

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Contrary to popular belief, depriving people of access to higher education based on a

criminal record does not make campuses safer; instead it undermines public safety by

foreclosing an opportunity that has proven to be one of the most effective deterrents to

recidivism (CCA, 2010, p. 3). According to the Department of Education, Higher

education leads to increased earning and employment, which can strengthen our

economy, transform communities, and foster intergenerational mobility. Ultimately, by

supporting the successful reentry and education of justice-involved youth and adults,

institutions can help to create stronger, safer communities and families (ED, 2016, p.

39). There are many ways to get involved with the movement to Ban the Box. As of

now, twenty-five higher education institutions across the nation have signed on to the

Fair Chance Higher Education Pledge (Martinez, 2016). The pledge signifies that

student affairs professionals and higher education administrators will demonstrate

commitment to reduce barriers and create a fair chance for second chances through

educational activities (Martinez, 2016). The pledge also highlights the need for

admissions practice to go beyond the box and make changes to the admissions process

when pertaining to students with criminal histories (Martinez, 2016). Individuals and

employees at institutions that sign the pledge also promise to support professors and

students who wish to teach in correctional facilities or insure that job training and

internships are available to those with criminal records and to set a positive example for

peers (Martinez, 2016). Banning the box is the first step towards revolutionizing the

criminal rehabilitation process across the nation.

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References
Center for Community Alternatives (2010). The use of criminal history records in college

admissions reconsidered. Retrieved from http://www.communityalternatives.org/

pdf/Reconsidered-criminal-hist-recs-in-college-admissions.pdf

Jaschik, S. (2016 August 1). NYU will stop using common app question on criminal/

disciplinary records. Inside Higher Ed. Retrieved from https://www.insidehighere

d.com/quicktakes/2016/08/01/nyu-will-stop-using-common-app-question-

criminaldisciplinary-records

Jaschik, S. (2012 September 20). Juvenile records and admissions. Inside Higher Ed.

Retrieved from https://www.insidehighered.com/news/2012/09/20/pennsylvania-

court-says-juvenile-authorities-can-report-actions-colleges

Martinez, A. (2016 June 10). White house urges colleges to rethink asking applicants

about criminal history. The Chronicle. Retrieved from

http://www.chronicle.com/ blogs/ticker/white-house-urges-colleges-to-rethink-

asking-applicants-about-criminal-history/112096

New, J. (2016 June 21). New push to ban violent athletes. Inside Higher Ed. Retrieved

from https://www.insidehighered.com/news/2016/06/21/petition-demands-ncaa-

ban-athletes-violent-pasts

New, J. (2015 October 21). Who deserves a second chance. Inside Higher Ed. Retrieved

from https://www.insidehighered.com/news/2015/10/21/community-college-

faces-criticism-after-football-player-convicted-rape-high-school

U.S. Department of Education (9 May 2016). Beyond the box: Increasing access to

higher education for justice-involved individuals. Retrieved from http://www2

.ed.gov/documents/beyond-the-box/guidance.pdf