February 5th, 2016 | Sterling
College Applications – The New Frontier for Ban the Box
By now, when new states, counties or municipalities enact Ban the Box legislation, it barely registers as newsworthy. Even President Obama struggled to get headlines this past November when he directed federal agencies to “ban the box” on their employment applications.
To date, as many as 100 cities and counties and 13 states—from coast to coast—have legislation on the books. Eight states passed ban the box laws in 2013 and 2014 alone. And, although some Ban the Box laws apply only to public employers, private businesses are increasingly affected as well. In their most basic form, ban the box laws make it illegal to include a checkbox on a job application asking about criminal history. Ban the Box laws are arguably well intentioned, which I’ll address more below, but they’ve created a dizzying compliance challenge for employers. And the challenge is only growing, as more cities, counties and states introduce some type of legislation.
New Spin on Ban the Box
So while we as employers are becoming used to our new reality, I found it noteworthy to learn that New York University is taking steps to remove the criminal background check question on their college application forms. By doing this, prospective students would no longer have to divulge if they’ve run afoul of the law. Could this be the new frontier of Ban the Box?
According to News.mic, NYU’s vice president for enrollment management MJ Knoll-Finn said in a letter last month to the Common App chief Paul Mott and board chair Gil J. Villanueva, “Especially in the context of high rates of school discipline and incarceration among people of color, it seems vital to pose two questions about the checkboxes.”
“Do they, in fact, have any predictive value, and does their presence work against universities’ mission as engines of social mobility and diversity either by discouraging applicants or by resulting in unjustified denials of admissions on the grounds of safety or integrity?”
As I consider the impact of this law, it’s impossible not to consider the similarities between the potential impact on both employers and institutions of higher learning.
- Juvenile Records Are Off Limits – As we all know, juvenile criminal records are off limits to employers and universities. Removing the question for younger adults puts both in a difficult situation because a background check will be limited to any criminal activity committed as an adult.
- Public Safety is Paramount – Both employers and universities want to protect their employees/students from any harm that could come from allowing those with history of theft, violence or dishonesty to enter their offices or campuses.
- Lawsuits Are Expensive – Employees and students engage in acts that run afoul of the law from time to time. Unfortunately, some of this criminal activity creates harm for others whether physical, psychological, financial, etc. Employers are held to the standard of “if you could have known, you should have known”. I imagine universities are or will be held to the same standard.
- Reputation Is Everything – The last thing an employer or university wants is an incident or series thereof that reflects negatively on their hard earned reputation.
- Exemptions A-Plenty – Generally, employers are exempt from complying with Ban the Box laws if there is a federal regulation that supersedes the statute. Do universities have a similar requirement if they accept various federal and state funds or grants?
Bottom line is that universities should weigh these important concerns before “opting-out” on this complex issue. Of course, we all want to be fair in our employment and admission standards but we need to understand the potential risks of doing so.
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