In August, Senator Brian Schatz introduced the Beyond the Box for Higher Education Act (Senate Bill 2634) in the U.S. Senate. If enacted, the legislation would encourage (not require) colleges and universities to remove criminal and juvenile justice questions from their admissions applications by providing guidance and training schools to change their policies. The U.S. Department of Education would be responsible for issuing guidance and recommendations.
Companion legislation (HR 4950) was introduced in the U.S. House of Representatives.
As of 2019, roughly 72 percent of colleges and universities in the U.S. included criminal history questions in their admissions processes. Advocates for the legislation argue that admissions professionals often reject otherwise-qualified applicants with criminal records without giving sufficient consideration to their skills, interests, demographic or sociological backgrounds.
Background of the Beyond the Box movement
The Beyond the Box (or “Banning the Box”) movement was established in 2004 as a national civil rights movement of formerly incarcerated people and their families. Its goal is to help these individuals achieve personal and professional success through a range of resources and policies. A major focus of the movement is to change policies that create barriers for individuals with a criminal record by working with federal and state agencies.
Recent, Additional “Beyond the Box” Legislation
This legislation comes on the heels of other federal efforts, affecting higher education and businesses more broadly, to open up access to resources to incarcerated individuals and destigmatize criminal history. For example:
- At the end of 2020, Congress reinstated Pell Grant access to incarcerated students through the passage of the FAFSA (Free Application for Federal Student Aid) Simplification Act, lifting a 26-year ban. Questions about past drug convictions will also be eliminated from the Pell Grant application process, effective for the 2023-2024 award year.
- The Fair Chance to Compete for Jobs Act of 2019 will go into effect as of December 17, 2021. It bans federal agencies and contractors from asking job applicants about their criminal history.
It is important to note that the Beyond the Box for Higher Education Act is merely pending legislation. It is uncertain as to whether it will actually be enacted into law. And even if it is, the legislation seeks to “encourage,” not mandate, higher education institutions to remove criminal history questions from their admissions processes. However, as judged by other recent legislation enacted related to Pell Grants and federal government employment practices, there appears to be a growing trend toward eliminating the consideration of criminal history in financial aid, admissions and employment through the legislative process.
In light of this, higher education institutions may want to examine their admissions policies and do contingency planning to the extent their policies require disclosure of criminal history.
We will keep you updated on further developments relating to this issue.
If you have any questions, please contact Ryan Kauffman.
Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters. You can contact him at firstname.lastname@example.org or 517.377.0881.