The Obama administration is pressuring colleges to not include questions about criminal records on applications, and the country’s largest application is already giving ground.
The Department of Education released a new report Monday called “Beyond the Box: Increasing Access to Higher Education for Justice-Involved Individuals.” The report urges universities to restrain requirements involving “justice-involved individuals” (i.e. ex-convicts) to disclose their criminal histories, on the grounds that such questions limit former criminals’ access to higher education.
The report places heavy emphasis on the fact that those with criminal records are disproportionately likely to be racial minorities. Since blacks, Hispanics, and American Indians have higher-than-average crime rates, a larger proportion of them have criminal records and are impacted by having to disclose past offenses. The new report, though, suggests that the higher incarceration rate of minorities is due to racially biased policies.
“Data show plainly that people of color are more likely to come in contact with the justice system due, in part, to punitive school disciplinary policies that disproportionately impact certain student groups and racial profiling,” the report says.
The Education Department’s new push has already had a small impact. The Common Application, which is used by several hundred school across the country, announced Monday evening it is altering its criminal history question to only ask about felonies and misdemeanors, while eliminating a clause that asks about “other crimes.”
Former convicts later struggle to receive higher education, the report adds, in part because of questions on applications that ask applicants to recount their criminal history. About two-thirds of convicted felons do not complete college applications that they start, a figure far higher than that for non-criminals.
“Rather than asking how do we limit opportunity, we should be asking how do we broaden opportunity,” Secretary of Education John King said during a Monday appearance at the University of California, Los Angeles. “How do we ensure that our educational institutions welcome all students who want to improve themselves?”
The report stops short of saying that asking about criminal records is illegal, but it does draw connections with other areas, such as housing, where the administration has issued more explicit warnings against policies that disproportionately affect minorities. (RELATED: Obama Admin Says Landlords Can’t Refuse To House Criminals)
“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 report says. It points to precedents by the Department of Labor, Equal Employment Opportunity Commission, and Department of Housing and Urban Development, which have all concluded that questions about criminal history have a disparate impact and may be grounds for a racial discrimination lawsuit.
Without explicitly copying those departments, the warning is clear: Schools that reject applicants for their criminal history are on shaky legal ground and could face lawsuits in the future. To avoid such a dire outcome, the Department of Education advises schools to limit their questions to recent or severe violations and to ensure applicants have a chance to explain themselves.
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