Anyone troubled by the idea that having a run-in with the law should consign a person to a lifetime of stigma and stifled opportunity will have cheered the recent news that three New York colleges have agreed—after a nudge from the state's attorney general—to drop questions about past arrests from their admissions procedures.
Getting rid of that part of the application process is a matter of justice and common sense: A huge number of Americans—more than 12 million in 2012, according to the FBI—are arrested every year, but far fewer are convicted of any crime, and many are booked on little or no basis at all. So an arrest record in and of itself isn't particularly meaningful, but needless to say, it doesn't look good, and has the potential to derail an otherwise qualified applicant's chances of getting in to the school of his or her dreams.
That said, the focus on arrests—which, it turns out, relatively few schools ask about, even though it's not illegal to do so—overlooks a much tougher obstacle to a college education that affects a lot of Americans: the widespread collection and use by US colleges of applicants' criminal conviction records.
Two-thirds of US colleges and universities that took part in a landmark 2010 survey by the nonprofit Center for Community Alternatives reported collecting criminal justice information. Around 500 schools, including many of America's biggest and best known, obtain the information via the "Common Application," which asks, "Have you ever been adjudicated guilty of a misdemeanour, felony, or other crime?" Other schools have their own admissions processes instead of or in addition to the Common App, and these vary widely from school to school; some ask only about felony convictions, others also inquire about misdemeanours or juvenile adjudications or even secondary school disciplinary records.
Fewer than half the schools that collect this information have written policies governing its use, but most admissions officers reported that a criminal record is "viewed negatively" and can hurt an applicant's chances of admission.
Why is this a problem? Start with the issue of basic fairness. Typically, ex-offenders—and after decades of "tough-on-crime" law enforcement, we're talking about 70 million-odd people here—have been punished for their crimes, many of them with prison time; they've paid their "debt to society". Throwing obstacles in the path of those who want to get an education can prolong their punishment indefinitely, even for relatively minor offences.
As is so often the case with US criminal justice, civil rights come into play, too. American criminal laws are race-neutral on their face, but they certainly aren't enforced in a race-neutral way. To cite just one familiar and depressing example: Black men are three times more likely to be arrested for drug offenses than white men, though they don't use drugs at a higher rate. Latinos don't fare much better. So, if colleges are taking a dim view of applicants with criminal records, guess who is more likely to suffer?
"There's a lot of talk about improving access to college [for minorities]," says Marsha Weissman, executive director of the Center for Community Alternatives. "But unless we deal with this issue, we're not going to get there." The college admissions process risks becoming one more mechanism for keeping minority communities locked into vicious cycles of disadvantage and exclusion.
School administrators argue that collecting criminal justice information makes for safer campuses. Not coincidentally, more and more schools started requiring applicants to disclose criminal histories around 2007, in the wake of the Virginia Tech campus shootings, when a student shot and killed 32 people, and other high profile incidents. (That shooter, Seung-Hui Cho, didn't have a criminal record, by the way.) Michael V. Reilly, executive director of the American Association of Collegiate Registrars and Admissions Officers (AACRAO), the professional organisation for admissions personnel, says his group hasn't called for schools to scrap the practice, but is mindful of the pitfalls. "If campuses are going to do this, they have to be cognisant of what they're doing, because there are a lot of concerns," he said.
This reaction to campus shootings may be somewhat understandable, but there's actually no research that indicates that students with criminal records pose any more of a safety risk than those without, or that schools that screen for criminal histories are any safer than those that don't. And that holds true across offences, including sexual assault. After two students at the University of North Carolina were murdered by two other peers with criminal records, a task force was established in 2004 to review campus safety. It found that of the students who committed crimes on campus in the previous three years, only 4 percent had a criminal history. Better predictors of criminal behaviour, as anyone who has spent time on a college campus will be less than shocked to learn, were drinking and fraternity membership. And a 2013 study by the Colorado School of Public Health found that just 8.5 percent of applicants with a criminal history to a large Southern college were charged with misconduct during their time there.
If anything, denying people with criminal histories a chance at higher education can actually harm public safety. The research on the impact on recidivism of post-release college education is limited, but there's plenty of evidence that inmates who pursue a college education while in prison are dramatically less likely to reoffend, and little reason to doubt that something similar would hold true for post-release prisoners.
Besides, if the idea is to keep dangerous people away from campuses, schools are going about it in too broad a way. About 94 percent of the schools responding to the Community Alternatives study reported viewing violent crime and sex offences negatively. But 90 percent reported they considered any felony conviction that way, with almost half saying they look unfavourably even at felonies committed by the applicant as a "youthful offender," which in most states means under the age of 18.
It's true that college admissions offices look at a range of qualities and character traits when assessing applicants; hence the interest in outside activities and public service and whatnot. And maybe an ex-drug offender has a tougher case to make in that sense than their high-school valedictorian. But just as kids can make bad choices, they can turn things around. Many—maybe most—deserve a second chance. US law recognises that "kids are different" for the purposes of criminal justice; they're less culpable, and more capable of being rehabilitated. The alternative is to tie them to their youthful mistakes for life, as happens to most of the 250,000 kids prosecuted in the United States as adults every year. Given all the challenges of reentering society from the criminal justice system, says Bianca Van Heydoorn, director of educational initiatives at the Prisoner Reentry Initiative at John Jay College of Criminal Justice in New York: "I think it says a whole lot about someone's character, drive, and motivation that they are trying to get a higher education."
Three-quarters of admissions officers told researchers they considered a drug or alcohol conviction negatively. But after four decades of harsh drug control policies, an incredible number of Americans have drug convictions. About one out of four of America's 2.2 million prisoners is inside for a drug-related crime—the vast majority of them for low-level offences.
It might seem more reasonable that a sex-offence conviction should disqualify a candidate for college admission. But a wide range of offences qualify as "sex offences," as Human Rights Watch has documented, from the very serious, such as rape, to the relatively innocuous, like consensual sex between teenagers, and even public nudity. What's more, sex offenders are comparatively unlikely to reoffend—only 13 percent do, compared with 45 percent for all crimes—and those who commit the offence when they're under 18 are the least likely to reoffend (4 to 10 percent). Despite this, sex offences are typically cited by college admissions offices as among the crimes most likely to trigger an automatic bar to admission.
Making matters worse, criminal records are plagued by "inadequacies in accuracy and completeness," making them "difficult to decipher" by the Department of Justice's own estimation. So it hardly inspires confidence to learn that only 40 percent of the schools that collect criminal justice information have staff trained to interpret it.
Now, having a criminal record will only rarely automatically disqualify a college applicant, depending on the policy of a given school and the gravity of the offence in question. Typically, disclosure triggers additional steps in the admissions process, which can include requiring that applicants produce a letter of explanation, a letter from a corrections official, or a rap sheet. Some applicants are accepted, despite their records, but an unknown number miss the cut. Even then, it can be hard to pinpoint a criminal record as the reason an applicant was rejected; some schools tell applicants why they were denied and others don't. One admissions director told the Center for Community Alternatives that, in his experience, most applicants asked to submit additional materials "drop out at that point."
So what can we do about it? Some activists, like Weissman of CCA, and Van Heydoorn of John Jay College, want schools to stop asking applicants about criminal history, period. Short of that, state governments could take a lesson from employment law; a growing number of states and municipalities have passed "ban the box" laws barring public agencies—and in some cases private employers—from asking about a prospective hire's criminal history until the candidate reaches the interview stage or receives a conditional job offer. Likewise, states could require schools to defer asking about criminal records until after making an applicant a conditional offer. (New York state lawmakers are considering legislation that mandates essentially this approach.) Admissions staff should be required to get adequate training in interpreting criminal justice information. Legislators should also make it clear that juvenile records are off limits. (Ex-offenders prosecuted in the juvenile justice system aren't required by law to produce these records, but some schools ask anyway.)
Ex-offenders deserve a chance to realise their basic human right to education, free from discrimination. When colleges ask applicants about their criminal histories, they compromise that right, and without any perceptible gain in public safety. They also send the message that past mistakes can have the drastic consequence of permanently closing off one of the surest routes to a better future.
Julian Brookes is a senior editor with the US program of Human Rights Watch. Follow him on Twitter.