On April 28, the Education Department urged colleges to stop asking applicants if they have been convicted of crimes. It also implied that asking about criminal convictions might be illegally discriminatory.
“This Second Chance Month … ED calls upon institutions across the country to re-examine their admissions and student service policies and holistically determine how they can better serve and support current and formerly incarcerated students. We call on you to ban the box,” said the Education Department in a blog post at Homeroom, the official blog of the U.S. Department of Education.
The “ban the box” concept originated in a campaign launched in 2004 by the self-styled “civil rights group” All of Us or None in 2004. It seeks to ban questions asking about prior criminal convictions from employment applications nationwide. “The campaign challenges the stereotypes of people with conviction histories by asking employers to choose their best candidates based on job skills and qualifications, not past convictions,” it says.
The Education Department linked to its Beyond the Box 2023 guide, which says that “The criminal justice system has a disproportionate impact on people of color and people living in poverty,” because although whites make up 60 percent of the U.S. population, they comprise only 38 percent of the incarcerated population.
This “disproportionate impact” language is significant, because the Education Department interprets its regulations enforcing Title VI of the Civil Rights Act as banning college policies that have a racially “disproportionate impact”, unless those policies advance an important educational goal that cannot be achieved through other policies that have less of an impact on minority groups. The Supreme Court has ruled that students and applicants cannot sue colleges for “disproportionate impact” under Title VI, in its decision in Alexander v. Sandoval (2001), because the Title VI statute only bans “intentional discrimination”; but the Supreme Court, in footnote 6 of that decision, has left open the possibility that the Education Department can cut off federal funds to colleges that violate such Title VI “disproportionate impact” regulations — which would be a death sentence for many colleges, which rely heavily on federal financial aid to their students.
Progressives tend to view criminal-conviction questions as tainted by racism, because a higher percentage of blacks than whites have criminal convictions. But that doesn’t make the criminal justice system racist, under the Constitution’s equal protection clause, which only forbids purposeful discrimination against a minority group, not policies that a minority group fails to comply with at a high rate, like not have a criminal conviction. See Personnel Administrator of Massachusetts v. Feeney (1979).
The black arrest rate is higher than the white arrest rate primarily because the black crime rate is higher, judging from surveys by crime victims, most of whom are of the same race as the person who victimized them. The Bureau of Justice Statistics’ National Crime Victimization Survey shows that in 2018, 28.9% of offenders who committed nonfatal violent crimes are black, even though only 13% of Americans are black; and that only 52.2% of offenders are white, even though 60% of Americans are non-Hispanic white. Such surveys are not racially biased against black people. That’s because the crime victims surveyed are overwhelmingly of the same race as their attacker. As the Bureau of Justice Statistics explains, crimes are committed mostly between members of the same race, and this is true for “rape or sexual assault,” “simple assault,” “aggravated assault,” and indeed, “all types of violent crime except robbery.” (See Race and Hispanic Origin of Victims and Offenders, 2012-2015.) A 2021 study by the federal Bureau of Justice Statistics found that although blacks are arrested for serious nonfatal violent crimes at more than twice the rate of people in general, this is not due to racism. Instead, arrests are correctly “proportionate” to the actual crime rate (which is higher among blacks than among whites), and to the crimes actually reported to the police, which often are committed by black offenders. As it noted, “white and black people were arrested proportionate to their involvement in serious nonfatal violent crime overall and proportionate to their involvement in serious nonfatal violent crime reported to police.” (See Allen J. Beck, Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018).
The Education Department’s blog post also touted its recently announced Second Chance Fellow program, which it said will “leverage lived experience and subject matter expertise to improve [the Department’s] policies and programs, enhancing [the Department’s] ability to implement and increase the impact of Pell reinstatement as well as other cross-cutting issues that impact students who are incarcerated and formerly incarcerated.” It also highlighted its Beyond the Box guide, which has “a focus on the importance of increasing access to higher education for system-involved individuals” and “recommendations to mitigate barriers to enrollment and ensure persistence and completion.”
However, a University of Michigan study has discovered that Ban the Box policies actually increase intentional racial discrimination against Black Americans seeking employment. The study found that such policies and legislation actually leads to more discrimination, with black applicants (especially young black males) receiving fewer callbacks because employers react to such bans by making assumptions about criminality based on the applicant’s race.
