Bars to Education: The Use of Criminal History Information in College Admissions

Abstract

One in four Americans has a record reflecting some form of involvement with the criminal justice system, and the law currently does very little to protect an individual from discriminatory treatment on the basis of that record. In 2010, the Center for Community Alternatives published a report that revealed a widespread practice among colleges and universities of obtaining and relying upon criminal history information in admissions proceedings. This Note asks whether, if this practice results in a racially disproportionate adverse impact on admissions decisions, there exists disparate impact liability that could be challenged by the Department of Education under Title VI of the Civil Rights Act. The Note begins by focusing on the well-documented overrepresentation of people of color in the criminal justice system and some of the post-incarceration social harms that affect this population. Next, the Note explores challenges to the use of criminal history information in the employment context—which has received much more attention than higher education—and how disparate impact frameworks in education cases have been used to challenge other practices that create disproportionate adverse effects. Finally, the Note describes the application of the disparate impact test to the practice at issue and concludes that if a prima facie case can be made, the purported educational necessity behind this practice can be achieved through less discriminatory means.