Re: SPG 601.38: “Required Disclosure of Felony Charges and/or Felony Convictions” and Related University of Michigan Policies We, the Carceral State Project at the University of Michigan--along with the undersigned faculty, students, and staff at the University of Michigan, as well as members of the larger community--wish to register our grave concern regarding the University’s recent implementation of a new policy, SPG 601.38.  This policy requires faculty, staff, student employees, volunteers, and visiting scholars who find themselves convicted of a felony, and even those merely charged but not convicted, to report it to the University. The University of Michigan already requires all prospective undergraduate and graduate students, faculty members, and staff employees to disclose any previous criminal record (both felonies and misdemeanors) during the admissions or employment application process, including, in some cases, information from otherwise sealed juvenile records. The University also currently requires prospective employees, including graduate students, to undergo a criminal background check conducted by a private, for-profit company to identify any felony and misdemeanors convictions or pending charges. Although the University argues that SPG 601.38 will “better promote safety and security and mitigate potential risk,” this self-disclosure mandate adds a newly punitive element to already invasive and unjust policies that cause far more harm than good. Taken together, these policies promote over-criminalization rather than public safety, reinforce the racial and economic inequalities in the criminal justice system and on our campus, and have other devastating collateral consequences.
The role of the University should be to offer education and employment rather than act as an extension of the carceral state.
The Carceral State Project at the University of Michigan and its undersigned supporters call on the University administration to rescind SPG 601.38 immediately. We also call on the University to join the ever-growing number of public and private universities, as well as public and private employers, that have repealed policies that require disclosure of criminal records and pending charges during the admissions and employment application processes and have rejected criminal background checks of employees and students, except to the extent mandated by federal and state law.
In support of these requests, we call attention to the following: 1. The preponderance of academic research rejects the presumption that policies mandating the disclosure of criminal records and requiring criminal background checks reduce violence and promote greater public safety. Moreover, there is overwhelming evidence that such policies have produced devastating consequences for marginalized groups and impacted individuals.
a. The mere existence of these requirements discourages many highly qualified candidates from seeking admission or employment. b. Because communities of color are disproportionately policed, arrested, prosecuted, and convicted, and the poor are criminalized far more aggressively than those with means, disclosure and criminal background check policies serve to exacerbate existing racial and class inequalities by limiting access to education and employment for members of vulnerable communities. c. The Carceral State Project has documented the devastating consequences for individuals who have disclosed their criminal records to the University. In one case, a student was asked to leave school immediately, and in another a student had an offer of employment rescinded. These students' previous records had absolutely no bearing on their role as student or employee and posed no safety danger to any other member of the U-M community. These are just a few of the cases we have witnessed.
2. The University of Michigan developed these policies without an open and democratic process, without sufficient consultation with campus constituencies, and without robust community input. The University has in its employ some of the world’s leading experts on the U.S. criminal justice system, a number of whom have experienced its devastation personally and directly. These experts are well versed in the leading research about the efficacy and consequences of criminal record disclosure policies, understand how those policies work on the ground, and have contributed their own research and perspectives to many widely respected studies. Contrary to the University’s assertion that SPG 601.38 will “better promote safety and security and mitigate potential risk” on campus, there is no compelling evidence to indicate that felony self-disclosure, criminal background checks, and other related policies have made, or will make, the University community safer. 3. The university’s promise to offer an “individualized assessment” of the fate of those who disclose previous criminal records or pending charges or whose criminal records are flagged in background checks raises serious concerns.
a. A discretionary, non-transparent assessment process will necessarily create an atmosphere of fear and constant self-surveillance among impacted members of our community. b. It is not possible for the University to implement a discretionary system of risk assessment without reproducing and enhancing the discriminatory aspects of the broader system of criminal justice in the United States, including policies that exacerbate racial/economic inequality and the criminalization of marginalized communities. c. Criminal record disclosure policies and background checks, therefore, actively subvert the University’s commitment to nondiscrimination and equal opportunity. 4. The University of Michigan is moving in the opposite direction of the national movement to “ban the box” by continuing policies that criminalize prospective and existing members of its community.
a. In 2018, the Common Application, due to pressure from the national “ban the box” movement, removed mandatory questions about involvement with the criminal justice system from undergraduate college applications. The University of Michigan has chosen to maintain such questions, despite widespread recognition of the harm they cause to the principle of equal educational opportunity. b. Rackham Graduate School continues to ask prospective graduate students to disclose their past and pending criminal records, including juvenile records that are sealed under many state laws, and since 2013 has conducted criminal background checks on all graduate student employees. c. In its “Beyond the Box” report (2016), the Department of Education concluded that the “effect of inquiring early in the application process” about criminal records is “chilling” and estimated that two-thirds of individuals with felony offenses actually stop the application process when asked about their criminal history. As importantly, the DOE has made abundantly clear “that colleges and universities that admit students with a criminal justice history have no greater crime than those that do not.” The report also found that “disparities in the criminal justice system, ranging from arrests to sentencing decisions, disproportionately impact individuals of color, and, in turn, disproportionately require students of color to respond to questions about criminal history.”
For the above reasons and based on the evidence contained in the notes attached to this letter, we, the Carceral State Project at the University of Michigan--along with the undersigned faculty, students, and staff at the University of Michigan, as well as members of the larger community--ask the University of Michigan to join the nationwide movement to eliminate any and all policies that require individuals to disclose their relationship to the criminal justice system or that investigate their criminal records, past or present.
We understand that the University intends to act in the interest of the safety of its community members. We share this commitment and strongly condemn any act of violence against any member of our campus community. As well, we specifically condemn the environment in which reports of such violence, particularly sexual harassment and assault, have been ignored and even excused on our campus and at others across the nation. We urge the University to address the various harms to which these community members are vulnerable through a commitment to restorative justice and to trauma-informed response practices, rather than to policies that condone and extend the failures, excesses, and discriminatory features of the criminal justice system.
We call on the University to pursue robust public debate on these issues and to utilize the expertise of faculty, staff, students, and community members beyond the university who have researched and experienced the criminal justice system in the United States. And we offer our expertise as members of this and surrounding communities—both formerly incarcerated and not—so that together with the administration we might craft campus practices and policies that would, in fact, increase the well-being of all members of our community.
Signed, The Carceral State Project at the University of Michigan
Amanda AlexanderSenior Research Scholar, University of Michigan School of Law and Executive Director, Detroit Justice Center Nora KrinitskyMichigan Mellon Postdoctoral Fellow in Egalitarianism and the Metropolis, Department of History of Art Matthew LassiterProfessor, Department of History Ashley LucasAssociate Professor, Residential College and Department of Theatre & Drama, Director of the Prison Creative Arts Project Ruby TapiaAssociate Professor, Departments of English Language and Literature and Women’s Studies Heather Ann ThompsonProfessor, Departments of Afroamerican and African Studies and History and the Residential College
 https://spg.umich.edu/policy/601.38. The University asks potential graduate students questions about criminal history during the application process and makes many admissions offers contingent on a criminal background check, including for Ph.D. students whose funding packages include GSI/GSRA/GSSA positions. The Rackham admissions process asks for self-disclosure of felony and misdemeanor convictions, and any pending charges, and inquires about juvenile delinquency records. https://spg.umich.edu/policy/201.95. The University conducts criminal background checks through a private contractor, General Information Services/General Information Solutions (and related subsidiaries), that has repeatedly been found to violate the rights of individuals subject to investigation. In 2012, General Information Services lost a legal challenge to the constitutionality of the Fair Credit Reporting Act in an attempt to shield itself from class action lawsuits. In 2015, the Consumer Financial Protection Bureau fined the company $13 million and entered into a consent decree as a penalty for extensive errors including misidentifying criminal records to the wrong individuals, reporting dismissed arrests as convictions, using expunged records, and misclassifying misdemeanors as felonies. In 2017, the company settled another class action lawsuit that exposed its continued improper practices in violation of individual rights. See https://www.24-7pressrelease.com/press-release/fcra-ruled-constitutional-federal-district-court-rules-against-general-information-services-and-sides-with-the-united-states-government-and-classaction-plaintiffs-313844.php; https://files.consumerfinance.gov/f/201510_cfpb_consent-order_general-information-service-inc.pdf; https://topclassactions.com/lawsuit-settlements/closed-settlements/821905-general-information-solutions-background-check-class-action-settlement/. https://spg.umich.edu/policy/601.38. It is particularly egregious that SPG 601.38 requires disclosure of any pending felony charge, not just a criminal conviction, given the systematic inequalities in the criminal justice system and its alleged presumption of innocence and due process. Furthermore, the SPG 601.38 policy is legally convoluted since it promises an individualized assessment regarding the “nature and gravity of the offense,” in apparent mis-recognition that a non-adjudicated felony charge is not in fact a criminal “offense.”  National Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences (Washington: The National Academies Press, 2014), https://www.nap.edu/catalog/18613/the-growth-of-incarceration-in-the-united-states-exploring-causes. Also see: https://scholarworks.wmich.edu/jca/vol4/iss1/6/;http://www.communityalternatives.org/pdf/publications/BoxedOut_FullReport.pdf; https://www.brookings.edu/research/thinking-beyond-the-box-the-use-of-criminal-records-in-college-admissions/; https://www.theatlantic.com/politics/archive/2016/04/ban-the-box-comes-to-campus/480195/. Research shows that these policies discourage potential applicants with criminal records from seeking admission or employment at universities that inquire about criminal history and conduct background checks. An estimated 120,000 college and university applicants per year have criminal records, as do a total of 80 million Americans. Deterring applications for education and employment from these individuals represents an even greater potential harm than the likelihood that deserving students or employees will be mistreated in the internal discretionary risk-assessment process. It is not possible to know how many people--potentially valuable contributors to our community--have chosen not to apply to the University because of these policies. But there is massive evidence that such punitive policies increase recidivism, exacerbate inequality, and therefore make the broader society less safe under the false promise of protecting institutions. See https://www.brookings.edu/research/thinking-beyond-the-box-the-use-of-criminal-records-in-college-admissions/. For some of the most important work on this topic, see footnote 6 and articles by Devah Pager (https://scholar.harvard.edu/files/pager/files/pager_ajs.pdf), Bruce Western (https://scholar.harvard.edu/brucewestern/publications), and Becky Pettit (https://minio.la.utexas.edu/colaweb-prod/person_files/0/6017/becky_pettit_curriculum_vitae.pdf). https://sites.lsa.umich.edu/carceral-project/symposium/. Faculty members across the university have rallied to support these individuals when this has happened. Their time, and even more so the time of those harmed by disclosure policies, could be spent much more productively in the classroom and providing other needed services at this university. An internal discretionary process of risk assessment will reproduce more than mitigate the comprehensively discriminatory aspects of the broader carceral system in the United States, including over-criminalization and selective enforcement based on race, economic status, and geographic location. These inequitable processes--not the alleged danger of the perpetrator or the specific nature of the alleged crime--often shape the difference between a felony and a misdemeanor charge, between a criminal conviction or a diversion program, between being arrested for or insulated from the consequences of identical acts of law-breaking. As one example of this, the University includes the sex offender registry in its disclosure and background check policies with no acknowledgment of the considerable research showing that a majority of individuals listed are not dangerous and should not be included under any reasonable standard. See: https://www.hrw.org/news/2007/09/11/us-sex-offender-laws-may-do-more-harm-good and https://thehill.com/opinion/criminal-justice/357096-sex-offender-registries-endanger-the-lives-theyre-meant-to-protect. Just this month, Michigan Attorney General Dana Nessell filed legal briefs arguing that the Michigan Sex Offender Registry does not distinguish between dangerous criminals and individuals who constitute no threat to others (in her words, the registry “has swelled without any focus on individualized assessment of risk to the community . . . which makes it difficult for offenders to rehabilitate and reintegrate into the community” and inhibits rather than enhances public safety). See: https://registryreport.org/2019/02/08/michigan-ag-registry-is-punitive-negates-public-safety/. It is not possible for the University to create an internal risk assessment process that corrects for the systematic inequalities and rampant criminalization in the state and federal sex offender registries. “The University of Michigan is committed to a policy of equal opportunity for all persons and does not discriminate on the basis of race, color, national origin, age, marital status, sex, sexual orientation, gender identity, gender expression, disability, religion, height, weight, or veteran status in employment, educational programs and activities, and admissions." https://admissions.umich.edu/policies. https://ccresourcecenter.org/2018/08/09/common-application-bans-the-box/; https://www.insidehighered.com/admissions/article/2018/08/13/common-application-drops-criminal-history-question-although-colleges. https://www.ed.gov/beyondthebox; https://www2.ed.gov/documents/beyond-the-box/fact-sheet.pdf.