Testimony: SUNY Board of Trustees May 4, 2016 Meeting

Criminal Records and the College Admission Process

Testimony of Judith M. Whiting, General Counsel, CSS

For more than 173 years, the Community Service Society of New York (CSS) has worked to alleviate poverty in New York City. We provide targeted policy solutions to endemic problems, litigate impact cases, advocate for legislative and administrative change, and provide direct services to hundreds of New Yorkers each year. Among our focus areas are the problems affecting disconnected youth – young people who are neither in school nor in the workforce – and the collateral consequences of criminal convictions that include reduced opportunities for employment, housing, and higher education.

CSS firmly supports increased access to higher education as a pathway out of poverty. We champion the State University of New York, whose mission is to “provide to the people of New York educational services of the highest quality, with the broadest possible access, fully representative of all segments of the population in a complete range of academic, professional and vocational postsecondary programs including such additional activities in pursuit of these objectives as are necessary or customary.” But this mission is significantly undermined by SUNY’s requirement that applicants to any of its programs disclose on initial applications documents whether or not they have a felony conviction. This policy – both asking the question itself and the cascade of documentation requirements that follows from a “yes” response – discourages applicants, and in doing so it perpetuates racial discrimination.

There is no valid justification for this policy. Enhancing “public safety” is usually invoked the main reason for it, but there is no proven correlation between campus safety and screening applicants for criminal history. A 2007 study found no statistically significant difference in crime rates between colleges and universities that screen based on criminal background, court involvement, or military discharge information, and those that do not. This conclusion is reinforced by data from individual schools. For example, a 2012 study of a Midwestern university found that none of the school’s students with felony convictions violated the school code of conduct during the previous two years. Similarly, a University of North Carolina study of its 2001–2004 crime statistics found that less than one percent of campus crimes were committed by students with prior felony convictions. There is simply no proof that individuals with conviction histories go onto commit crime on campus. For this reason, continuing to invoke the term “public safety” as a justification for exclusion is like blowing a dog whistle: it means nothing in and of itself but conjures up stereotypes and prejudice.

CSS sees the effects of these uncalled-for exclusionary practices firsthand. For the past eight years CSS’s Legal Department has focused on vindicating the civil rights of individuals with conviction histories through class action litigation, individual representation, legislative and policy advocacy, and by providing direct services to more than 700 New Yorkers each year through our Next Door Project (NDP). NDP annually assists hundreds of New Yorkers in obtaining, understanding and correcting mistakes in their official criminal history rap sheets. On more than one occasion, clients have ordered rap sheets because SUNY schools require it. We are appalled. Rap sheets provided by the New York State Division of Criminal Justice Services (DCJS) contain confidential information – including sealed cases, youthful offender adjudications and arrests that did not lead to a criminal conviction – that is meant for the individual him or herself, not for viewing by anyone else. Yet SUNY instructs its schools to take advantage of its access to the confidential information, as well as information about misdemeanors, “citations” and violation-level offenses, and consider the entire record during the review process. Although DCJS has recently made “suppressed” rap sheets (which do not report sealed information) available upon request, it is likely that few college applicants know about this option. Even if they do, “suppressed” rap sheets will contain arrests that did not lead to a criminal conviction where disposition information is missing, and will contain both violation and misdemeanor convictions. SUNY’s directive that its schools review the entire record can and likely does lead to inappropriate, differential and prejudicial treatment of applicants who are ready and eager to learn, and pose no threat to persons or property.

In 2014, CSS authored an amicus curiae brief on behalf of a law student, David Powers, who challenged his termination from St. John’s University School of Law based on an allegedly incomplete answer to an admissions application question. Powers, who had completed three semesters, was dismissed and his credits rescinded based on the concept that he had falsified admissions information when answering an unclear question about his arrest history.(1) While it is true that the question asked Powers was confusing and that the question SUNY asks its applicants is more straightforward, the possibility exists for applicants to answer incorrectly. CSS’s Next Door Project estimates that approximately half of our clients do not understand their conviction histories and are unable – prior to our services – to correctly answer questions about them. We frequently see clients who believe they have a felony conviction, only to learn when reviewing the rap sheet we order for them that they do not have a criminal conviction history at all. Conversely, we also see clients who believe that New York expunges criminal convictions after a period of time and that they therefore have no record, only to learn when reviewing their rap sheet with us that they do indeed have one. In short, it is entirely possible that SUNY applicants may incorrectly disclose their conviction histories and be judged either as “ex- offenders” or as “liars” depending on the nature of the answer; neither being true.

The Court of Appeals recognized more than 28 years ago that New York State’s law and public policy “have as their objectives rehabilitating and reintegrating former inmates in the hope that they will spend their future years productively instead of returning to crime. To this end, the value of education—both as an escape from society’s underclass, and as a benefit to the public generally—is apparent.” (2) SUNY’s exclusionary policies – based on outdated attitudes and misunderstanding – undercut these aims for no good reason. We ask that they be stopped.


1 The amicus brief, joined by eight policy, law and advocacy groups from across the state, made the point that a truthful answer to an unclear question should not be the basis for termination. While the Court of Appeals upheld Mr. Powers’ dismissal (he was subsequently offered admission to Pace Law School and is now a matriculated student) as an action within St. John’s discretion, a strongly-worded dissent questioned both the school’s decision and the severity of its penalty. Powers v. St. John’s University School of Law, 25 N.Y.3d 210 (2015).

2 Eiseman v. State, 70 N.Y.2d 175, 191 (1987).



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