Ban the Box Heads to New Sector: Higher Education

Ban the Box laws have become increasingly commonplace for employers to follow. The state of Delaware is expanding who can or cannot ask about criminal history to the classroom – the higher education classroom. According to the bill’s synopsis,

“Research shows that questions about criminal conviction history deter individuals from applying to an institution and increase the likelihood of rejection, with a disproportionate effect on people of color. This Act promotes diversity by prohibiting academic institutions from inquiring into an applicant’s criminal conviction history, with limited exceptions for inquiries into certain types of offenses such as stalking and sexual assault.”

While the governor hasn’t yet signed, the Delaware Senate passed the “Ban the Box Act” (SB13) on June 30, 2022. The bill will become effective immediately when it is signed. The law impacts “academic institutions,” defined by the state as “an institution of postsecondary education receiving State funds or a private institution of postsecondary education with campuses physically located in Delaware.”

The bill will limit when academic institutions can request criminal history information from potential students when it is signed into law. With some exceptions,

“An academic institution shall not inquire about an applicant’s criminal history on an initial application form or at any time during the admissions process prior to the institution’s decision relative to the prospective student’s acceptance for admission.”

Schools can immediately ask about certain offenses on the application. Specifically, this includes asking about stalking or sexual assault convictions. However, if an academic institution denies admission based on a stalking or sexual assault conviction, the academic institution must notify the applicant. The applicant may then appeal the decision to the entity within the institution that considers the institution’s disciplinary matters.

Specific Exceptions

Schools do have some flexibility to ask about an applicant’s criminal conviction history for certain exceptions. Under the law, academic institutions may ask about an applicant’s criminal conviction history for the following reasons:

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• After acceptance, to offer the student counseling and other support services.
• To make decisions on the student’s participation in campus life and to determine if the institution will limit campus life participation after the student has been accepted for admission.
• If, after admission, the student enrolls in a program where criminal history must be reported to a state agency for licensing or certification, such as teaching. An academic institution cannot deny a student from admission or continuation in a program that requires an occupational license or teaching certificate based solely on a criminal conviction history. The academic institution must provide counseling relative to the licensing or certificate to the student so that the student can make an informed decision about whether they should pursue such a program.
• If information pertaining to criminal conviction history is on an application that is designed by a national application service, tailored to a specific degree program, and used by schools in multiple states.

If the academic institution decides to use criminal conviction history information to determine campus life participation or to offer counseling or support services after the student has been accepted for admission, it must consider:

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• The nature and seriousness of the crime.
• Whether the crime has a direct relationship with the student’s participation.
• How much time has passed since the crime.
• The student’s age when they committed the crime.
• Evidence of the student’s rehabilitation.

Academic institutions with formal policies related to student criminal history checks must make them available on their public website. Those that do not have a formal policy must still include a statement about how they comply with this law on their public website.

The legal landscape surrounding ban the box laws has seen rapid changes. Employers may wish to review this, as well as other ban-the-box laws, to determine what impacts they may have on their hiring procedures.