Higher education has become a critical opportunity in the United States. People with college degrees earn more over their lifetimes and are better equipped to fully participate in the American Dream. The quest for education has been at the center of the struggle for freedom and equality for African Americans in America since colonial days. A core belief of our democracy is the notion that it is right and fair that all people regardless of skin color should have the opportunity for an education, including access to higher education.
The right to equal educational opportunities has been at the forefront of the civil rights struggles in the United States and remains so today. While there have been significant gains in this regard, these gains are threatened by practices that that increasingly include criminal history background checks in college admissions processes and create exclusionary policies based on these background checks.
Because of the tragic racial disparities in the U.S. criminal justice system, the use of criminal records to screen out prospective students is not race neutral, but rather encroaches on the civil and human rights of people with criminal records. Moreover, as education is clearly associated with lower recidivism rates, impeding people’s ability to get a college education undermines public safety in the larger society. While there are encouraging signs that higher education opportunities will be reintroduce in correctional facilities, policy makers should also ensure that higher educational opportunity remain available in the community.
Historical Perspective: The Struggle for Equal Opportunity in Education
The struggle for access to education, regardless of race or ethnicity has been a seminal part of American history. While education of African Americans was forbidden under slavery, slaves risked life and limb to educate themselves. Slaves who were discovered to have learned to read were subjected to beatings and amputations.1 Desegregation of elementary schools, high schools and colleges was one of the core demands of the civil rights movement in the U.S.
Education was a primary focus of reconstruction efforts undertaken immediately after the Civil War 2. More than 3,000 freedman’s schools were established in the South and the first black colleges – Howard and Fisk Universities and Hampton College – were also established during this period. Nonetheless, opposition to the education of African Americans continued with the burning of schools and the beating and whipping of students and teachers.
The end of Reconstruction saw the gradual unraveling of education for African American children in the South, culminating in the Supreme Court’s 1897 decision in Plessy v. Ferguson, 163 U.S. 537 (1897), which gave the stamp of approval to the doctrine of “separate but equal.” This doctrine further institutionalized inequality and the racial divide in the United States, paving the way for the dismantling of schools, cutting off resources and acts of violence including cross burnings and lynchings. 3 Segregated education in grammar schools and high schools, permissible under Plessy, met its demise in 1954 with the U.S. Supreme Court decision in Brown v. Board of Education, 347 U.S. 483 (1954). Two years later in Hawkins v. Board of Control, 350 U.S. 413, 414 (1956), the Supreme Court applied the principal of equal access to higher education.
Creating equal opportunity in higher education has been and remains a slow and uneven process. There is continued resistance to equal opportunity for higher education as evidenced by the 2003 case involving the University of Michigan, Grutter v. Bollinger, 539 U.S. 306 (2003), in which a deeply divided Supreme Court recognized that educational institutions have a compelling interest in a diverse student body. Despite gains in access to higher education, colleges and universities remain disproportionately white and the goal of equal opportunity remains unfinished business.
Present Day Disparate Impact: Criminal Records, Higher Education and Collateral Consequences
In recent years colleges and universities have increasingly used an applicant’s prior criminal conviction as a basis to deny admission. The growth of this practice threatens to undermine the gains achieved through the hard-fought efforts of the civil rights movement. Because racial disparities infect every aspect of the criminal justice system in the U.S., the use of a criminal conviction to bar admission to college has a disproportionate racial impact on communities of color. In effect policies that restrict admissions based upon a criminal record result in excluding more persons of color who disproportionately make up the population of the criminal justice system. In short, exclusions for prior conviction become a surrogate for race-based exclusions.
The rationale for criminal background screenings in college admission is campus safety. Legislative action directed at campus crime began in 1991 with Congressional passage of the Crime Awareness and Campus Security Act (known as the Clery Act) that required colleges and universities to track and report campus crime statistics. Data reported in compliance with the Clery Act requirements show that crime on campuses is far lower than in the general community. The U.S. Department of Education 2001 Report to Congress, “The Incidence of Crime on the Campuses of U.S. Post Secondary Education Institutions,” concluded that “students on the campuses of post secondary institutions [are] significantly safer than the nation as a whole.” 4
The available data and media reports suggest that crime on campus is more likely to be committed by students without criminal records rather than students with prior records. Nonetheless, a few high profile but aberrational crimes have led to admissions policies that now require disclosure of criminal records by prospective applicants. In 2006, the Common Application, used by more than 300 universities and colleges, added questions about both criminal convictions and school disciplinary records. Individual colleges include such questions on their applications as well.
Race Neutral but Still Jim Crow
In 2004 alone, more than one million people were convicted of felony offenses in state courts. Almost 40 percent of those convicted were African American, far exceeding their 12 percent representation in the U.S. population at large. The greater number of police deployed in communities of color, racial profiling, and disparate enforcement of drug laws bring disproportionate number of young people of color into the criminal justice system. As a result of these and other disparities throughout the criminal justice system, an estimated 1 in 3 black men age 16-34 now have a criminal record. Because so many people from communities of color are caught in the criminal justice system, the use of admissions policies that would screen out people with criminal records will have the same effect as segregationist admissions policy of the Jim Crow era.
Racial disparities appear at every juncture along the criminal justice continuum and consequently disproportionately limit access to higher education for college applicants of color. An example of the disproportionate effect criminal convictions have on attendance at college for particular students is demonstrated by data regarding the denial of Pell grants. In their study of the impact of a criminal record on social inequality, Darren Wheelock and Christopher Uggen concluded, “Relative to Whites, racial and ethnic minorities are significantly more likely to be convicted of disqualifying drug offenses (U.S. Department of Justice 2003) and significantly more likely to require a Pell Grant to attend college (National Center for Education Statistics 2000). It is therefore plausible that tens of thousands have been denied college funding solely on the basis of their conviction status.” 5
Thus while screening of prospective college applicants for criminal records may appear to be race neutral, the racial disparities in the criminal justice system mean this practice has the potential of having significant racially exclusionary effects. The combination of exclusions of people with criminal records and racial disparities throughout the criminal justice system has resulted in an American tragedy: there are more young African American men in prison in the United States than are enrolled in college.
The criminal justice system has created a new divide in the U.S. In Brown v. Board of Education, the Court recognized that in young people, race-based segregation “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone.” 347 U.S. 483, 494 (1954). The racial exclusion that results from the use of criminal records touches the minds and hearts of those seeking to better their lives even more so than the segregation the Brown Court sought to eradicate and signals a disheartening retreat in the hard won advances of civil rights in the U.S.
CCA is pleased to announce our newest publication, THE USE OF CRIMINAL HISTORY RECORDS IN COLLEGE ADMISSI0NS RECONSIDERED. Our research shows that a majority of colleges and universities now collect criminal history information as part of the college admissions procedures. A survey done in collaboration with the American Association of College Registrars and Admissions Officers found that a broad array of convictions, including convictions for relatively minor offenses, are viewed as negative factors in the context of admissions decision-making. CCA offers a series of recommendations designed to make admissions processes fairer and more evidence-based.
1. Heather Andrea Williams, 2005. Self-Taught: American Education in Slavery and Freedom. Chapel Hill, North Carolina. University of North Carolina Press.
4. U.S. Department of Education. 2001 Report to Congress. The Incidence of Crime on the Campuses of U.S. Postsecondary Education Institutions. Washington, D.C. at5.
5.Darren Wheelock and Christopher Uggen, 2006. Race, Poverty and Punishment: The Impact Of Criminal Sanctions On Racial, Ethnic, and Socioeconomic Inequality. NPC Working Paper #06-15, at p. 21, available at http://www.npc.umich.edu/publications/working_papers/?publication_id=79&
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