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California ‘bans the box,’ protecting formerly incarcerated people in the college admissions process

California is the fifth state to 'ban the box' in higher education, restricting schools from inquiring about criminal history.
Tamar Sarai Davis November 12th, 2020
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Keisha Murphy is on the frontlines of fighting COVID-19 as a registered nurse based in San Bernardino County, California. While the pandemic poses new challenges to her important work, the road to her nursing career was also riddled with obstacles for one reason: Murphy’s prior felony conviction.

Murphy had been working as a licensed vocational nurse (LVN) for six years when she decided to pursue further education and become a registered nurse, which requires either an associates or bachelors degree in nursing. Public community or junior colleges had been out of reach for Murphy when she sought to obtain her LVN certificate due to her conviction history. Six years later, as she looked to return to school for her bachelor’s degree in nursing, she found similar limitations.

Left with few options, Murphy enrolled in West Coast University (WCU), a private, for-profit college that focuses on providing healthcare degrees. She took out $140,000 in student loans to help cover the roughly $150,000 cost to secure her bachelors degree at WCU. Murphy had almost completed her coursework and was performing well when in February 2019, six months before she was set to graduate, she received a call from the university dean. He told Murphy he was recently informed about her past felony conviction, and instructed her to stop attending her clinical placement assignments at a hospital. He also directed Murphy to meet with the schools’ ethics committee.

While dismayed, Murphy said she didn’t think it would be too serious: She had always been open to background checks and knew that a law protected applicants from having to disclose their conviction history so long as they had a court-provided certificate of rehabilitation. The certificate is available for people who have been out of custody for seven years and who have passed a background check. Under California state law, individuals who have obtained these certificates also cannot be denied professional licensure solely because of their prior convictions. Murphy received hers in 2014.

“I presented my case and explained to them ... what had happened—that I never evaded any life scans or anything like that to attend clinical placement,” said Murphy, in an interview with Prism. “Then the next day they voted to expel me.”

An impossible bind

 Murphy’s story is emblematic of the lose-lose situation many people with prior convictions face when they choose to seek higher education. Admissions policies that run background checks or ask applicants about their criminal records can adversely impact the chances of being accepted into the college of their choice. However, an applicant’s failure to disclose their conviction history—even if their right to privacy is protected by law—can also have negative consequences. Colleges have cited concerns around campus safety and even doubts about whether formerly incarcerated students will be able to obtain professional licenses post graduation as reasons for rejecting students with criminal records. Regardless of colleges’ reasoning, the result is that students with criminal records—including those like Murphy who have arduously sought to rebuild their lives—are placed in an impossible bind.

When private attorneys told Murphy that there was nothing they could do in her case, she found refuge in Root & Rebound, an organization based in California and South Carolina that aims to restore resources and power to those impacted by incarceration. On the heels of her expulsion, the group provided Murphy with much needed legal aid and successfully helped her fight for an appeal.

Two months later in April of 2019, the school followed up with Murphy to let her know she could return and complete her coursework. While she graduated earlier this year, her journey to commencement was not without additional cost in both time and money. She was required to repeat a course she had already paid for, costing her an additional $24,000.

While Murphy is ultimately now living the professional life that she had once aspired to, she recognizes that this is a problem that stretches far beyond just her personal story. This year, she was among a handful of researchers, activists, and lawyers who lobbied on behalf of California Senate Bill 118, recently passed legislation that will prohibit all colleges and universities in the state—both public and private—from inquiring about an applicant’s criminal record.

According to the Chronicle of Higher Education, 70% of colleges in the United States report asking applicants about their criminal history on their admissions applications. For applicants who do have criminal records or were formerly incarcerated, this inquiry alone has a profound chilling effect: Statistics show that two-thirds of applicants who have a conviction history do not finish college applications after they get to the criminal history question.

This particular barrier sits within a larger set of challenges formerly incarcerated people contend with related to education. Sonja Tonnesen-Casalegno, deputy director of programs at Root & Rebound, noted that many people who have been incarcerated, particularly younger people, did not complete their basic education prior to their incarceration and may have difficulty continuing their education post-release as a result. Further, academic programs provided to incarcerated youth are often of substandard quality.

In a climate wherein college graduates see 57% more job opportunities than non-grads and where an estimated two-thirds of all jobs require postsecondary education, the lack of higher education can have huge ripple effects throughout one's life.

 A powerful, though imperfect, bill

With SB 118, California becomes only the fifth state to ban the box in higher education, joining Colorado, Louisiana, Maryland, and Washington.

Tonnesen-Casalegno says the bill received unanimous support from members of the state legislature’s education committee and most university leadership. She noted, however, that some schools did raise questions around whether formerly incarcerated students would be eligible for certain professional licenses upon graduation. In order to assuage those concerns the bill was amended to feature a notable exclusion: The legislation will not apply to professional degree programs or law enforcement training programs.

This carveout is not ideal, says Tonnesen-Casalegno, but groups like Root & Rebound and other bill advocates plan to work with universities to ensure the subset of programs falling into that category is as narrowly defined as possible.

Despite this concession, advocates for the bill like Dr. Noel Vest argue it is even more expansive than similar legislation that has already been passed in other states. Vest, who is currently a postdoctoral fellow at Stanford University, is also a formerly incarcerated scholar. He received his PhD in 2019 from Washington State University and was engaged in legislative advocacy around Washington’s 2018 Fair Chance in Higher Education Act, a bill that similarly banned the box in Washington state colleges and universities.

“The bill in California is very powerful because it actually states in the legislation that it applies to private and public universities,” Vest told Prism. “Even though the bill [in Washington] specifically states that it's any school that receives public or any kind of tax funding, some places have interpreted that to mean that it doesn't specifically apply to private schools in Washington.”

Given the size of California’s public college system and its status as home to the largest jail system in the country, if legislation is successfully implemented it is likely to be a model for other states hoping to make similar reforms.

‘Be an advisor, not a gatekeeper’ 

Vest admits that in many ways his experience diverges from that of many other formerly incarcerated people and has lacked many of the major barriers. He was raised in a white middle class family and didn’t grow up in an over-policed neighborhood, and it wasn’t until his mid 20s that he first became involved in the criminal legal system following his substance dependency. Further, while he was incarcerated in Nevada, Vest participated in a fairly robust prison education program that offered courses through the College of Southern Nevada. He cites that program as being crucial to his current academic success.

However, given his experience, Vest is not immune to understanding—especially when it comes to the major obstacles facing formerly incarcerated students after they have applied to and been accepted into institutions of higher education. Vest, along with Andrew Winn, director of Project Rebound at Sacramento State University and a formerly incarcerated scholar, cite access to housing and on-campus jobs as an ongoing issue. Many schools that have banned the box in admissions continue to ask about conviction history in applications for student jobs or placement in dormitories. The need for affordable housing and steady employment is heightened for formerly incarcerated students because they may be saddled with enormous debt, often from court-related fines and fees, Winn notes. Additionally, the technological divide created by incarceration can leave some students falling behind—an acute problem now that so many schools have shifted to remote learning.

Outside of those obstacles, formerly incarcerated students also are met with narrow, limited expectations of what they can achieve and aspire to. Both Vest and Winn say that upon their release they believed that becoming a drug and alcohol treatment counselor was among the few job opportunities they would have available, because it’s among the few professions that those in prisons and jails might interact with regularly. Those inside, such as Vest, are often able to benefit from programs run by alcohol and drug treatment counselors which frequently sparks interest in pursuing a similar career themselves. Vest also noted that substance dependency counseling tends to be a more forgiving industry when it comes to accepting professionals with prior convictions. While these careers and programs are extremely important, both Winn and Vest believe that prisons should work towards expanding the range of professional fields that those inside are made aware of and can aspire to upon their release.

Colleges should also take this up and debunk the idea that there remain only few careers available to their formerly incarcerated students. However, many schools still perpetuate the notion that those with conviction histories will never be able to overcome barriers to professional licensure.

Even in Murphy's case, her expulsion was the result of West Coast University policy around students with criminal records that is itself rooted purely in a speculative theory that they would not be able to obtain professional licenses upon graduating due to their criminal record—something that she has since proven not to be true.

“Their policy is they believe that it's unlikely for convicted felons to obtain licensure through the board of Registered Nursing and it's unlikely for us to obtain employment after graduation, so we shouldn't just waste our time, money, or effort applying there,” explained Murphy.

While many licensing programs do reject formerly incarcerated applicants, advocates from Root & Rebound say colleges should be helping students navigate those barriers and find new ways to still meet their ultimate goals instead of reinforcing the idea that they can’t aspire to what they want.

“Become the expert on those barriers to licensure so that you can educate students,” said Tonnesen-Casalegno. “Be an advisor, not a gatekeeper.”

A persistent stigma

 Even for students who may not be interested in acquiring professional degrees like Murphy, their experiences can still be adversely shaped by the stigma that surrounds incarceration—even within fields that should engage more thoughtfully with the carceral system. In disciplines where conversations around crime and punishment frequently arise, formerly incarcerated students can be left feeling that they have to disclose their pasts without knowing how it might be received.

“Many of the students who have incarceration experiences are really drawn towards majors like sociology, psychology, criminal justice, and social work,” Winn told Prism. “Those also tend to be the majors that speak most about the experiences of previously incarcerated people and those with convictions, and so I think about the microaggressions that students face every day when they speak out in class and say, ‘ Look, I'm that person that you're talking about, here I am.’ Not all our students have that self confidence in themselves to actually come out and speak up and say, ‘Look, that's not really what actually happens based on my own personal experience.’”

The endurance of this social stigma is not just detrimental to formerly incarcerated students themselves, but to the entire campus. If colleges and universities seek to not just prepare students for the world beyond their walls, but also provide tools to enable students to improve that world, they ought to welcome people with different life paths, experiences, and ways of thinking —including those who have spent time in prison or jail .

The reluctance to meaningfully fold formerly incarcerated people into campus life stems not from any evidence-based concerns about public safety, but rather from the stigma surrounding those deemed to be irreparably deviant and criminal. Tonnesen-Casalegno is adamant that people understand that campus safety is a hugely important issue but it is not one that “lies at the feet of formerly incarcerated students.” She says banning the box will not hurt campus safety efforts because on campus violence and harm is often perpetrated by those who are the most privileged and who are frequently not held accountable. “Criminal history is not a window into someone's ability,” said Tonnesen-Casalegno. “It's a window into their childhood, their circumstances, and all of the things we as a society argue that we will not discriminate against.” 


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