The College Fix

‘These policies promote over-criminalization rather than public safety’

The University of Michigan is facing criticism from professors in multiple departments for a new policy that requires employees to report felony charges and convictions since Feb. 1 to the administration.

They claim that the policy will disproportionately harm racial minorities, mirroring the problems in the criminal justice system.

Administrators believe they can “create a process that doesn’t reproduce the bias outside the university. That is impossible,” one of the critics, history professor Matthew Lassiter, told MLive last month. “Everything we teach in history shows that you cannot create a non-biased process and impose it on a biased society.”

Critics have been silent about a related matter, however: the reported bias against racial minorities who are accused of sexual misconduct in Title IX proceedings, and the consequences that can trail them throughout their lives.

Asked if he saw similarities in disparate racial impact between the felony disclosure policy and Title IX proceedings, or believed they have relevant differences, Lassiter told The College Fix he did “not want to be quoted or referenced in a story comparing this policy to Title IX.”

Pressed on what concerned him, he wrote in an email that “I have not followed the Title IX debate closely enough, or researched it enough, to feel comfortable commenting on the comparison.”

Lassiter’s colleagues in the university’s Carceral State Project, which is trying to get the felony disclosure policy scrapped, have not responded to Fix queries asking for their thoughts on the similarities and differences between the two policies. Neither has the Black Student Union.

Still upset that university refused to ‘ban the box’

The public university’s new policy, which took effect Feb. 1, applies to faculty, staff, student employees such as graduate students, volunteers and visiting scholars, but not those covered by a “collective bargaining unit.”

It requires anyone with a felony charge or conviction to report it to the university within one week, though per the university’s staff handbook, it “does not automatically disqualify an individual from employment.”

Once the university has been informed, the human resources department will evaluate the information similar to how it conducts background screening before hiring employees.

It will determine the weight of the charge or conviction by assessing the nature and gravity of the offense, timeliness and accuracy of the disclosure, and relevancy to the role held at the university.

The university justifies the policy as a way to “maintain a safe community and prevent putting people at risk of harm,” according to its official publication. It emphasizes that misdemeanors are not covered by the policy, only felonies, which are “often punishable by jail time, probation and fines.”

MORE: Young black men hired less when employers can’t query criminal history

As if trying to anticipate criticism that the policy could endanger a large number of employees, The University Record gives examples of felonies: “murder, child abuse, aggravated use of a weapon, criminal sexual conduct, identity theft and home invasion.”

The steering committee for the Carceral State Project, which studies the consequences of “mass incarceration, policing, and immigration detention” in Michigan, circulated an open letter to the university for students, faculty and staff to sign.

The group describes itself as an “interdisciplinary collaboration” among advocacy groups, researchers, writers and artists. Its motto is “Research and Advocacy on Criminal Justice, Policing, Imprisonment, and Inequality.”

The open letter argued that the new policy added a “newly punitive element to already invasive and unjust policies that cause far more harm than good”: the mandatory disclosure of criminal record in both admissions and employment applications, sometimes from “otherwise sealed juvenile records.”

The university has refused to “ban the box,” even after the Common Application removed mandatory questions about “involvement with the criminal justice system” from undergraduate applications last year. Simply having to disclose this history prevents most felons from continuing their applications, the group said, citing a Department of Education study.

"The University of Michigan developed these policies without an open and democratic process." @UmichCarceral

The new Felony disclosure policy SPG 601.38 is redundant, counterproductive, and ONLY designed to exclude and intimidate @UMich NOT OKAY pic.twitter.com/5sB51OAuu7

— Joshua B. Hoe (@JoshuaBHoe) February 12, 2019

MORE: Common App still wants to know about your kangaroo-court convictions

“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 steering committee wrote.

In addition to Lassiter, the history professor, it’s composed of Amanda Alexander, senior research scholar in the UMich law school and executive director of the Detroit Justice Center; Nora Krinitsky, a postdoctoral fellow in the history of art department; Ashley Lucas, associate professor of theatre and drama and director of the Prison Creative Arts Project; Ruby Tapia, associate professor in the departments of women’s studies and English language and literature; and Heather Ann Thompson, professor of history and Afroamerican and African studies.

The steering committee said mandatory-disclosure policies have “devastating consequences for marginalized groups” because “communities of color are disproportionately policed, arrested, prosecuted, and convicted, and the poor are criminalized far more aggressively than those with means.”

According to Pew, in 2016 blacks represented 12 percent of the U.S. adult population but a third of the prison population, while Hispanics represented 16 percent of the adult population and 23 percent in prison. The gap between the percentage of whites and blacks in prison has been falling steadily, however, as fewer members of both groups go to prison.

“It is not possible to construct a discretionary policy of risk assessment that does not reproduce and likely enhance the larger patterns of racial and economic discrimination and disparate treatment in the criminal justice system,” Lassiter told The Fix, referring to the felony disclosure policy. “The university administration’s belief that this can be done is erroneous and not supported by research.”

Preceded by high-profile rape charges

While a university spokesperson told The Fix that the new policy was “not in response to any particular situation,” the university’s recent history and even justification for the policy suggests that it’s concerned about sexual offenses.

Lucas, the theater professor and steering committee member, told a town hall forum last month that she suspected “publicity” from her department was behind the change, according to MLive.

Its world-famous opera singer David Daniels was accused last summer of drugging and raping a man many years earlier, and he was charged with second-degree sexual assault right before the UMich policy took effect.

On a frequently-asked-questions section of the human resources page for the policy, the university gives an example that parallels how it might respond to a student-on-student sexual misconduct allegation.

MORE: UMich Title IX official gone after appeals court smackdown

Answering why charges must be reported “before there is a conviction,” the university said it wanted to remove a hypothetical “staff member who works with minors” if that person is being prosecuted for “criminal assault of a minor.” Immediate removal of the accused student from campus is an interim measure sometimes used early in Title IX investigations.

Even the open letter from the steering committee seems to make a distinction between sexual and all other offenses.

While they “strongly condemn any act of violence against any member of our campus community,” the committee members specifically condemn “the environment” in which reports of “sexual harassment and assault” have been “ignored and even excused on our campus and at others across the nation.”

‘We should heed our legacy of bias against black men in rape accusations’

The literature on racial dynamics in Title IX sexual-misconduct proceedings is more anecdotal than statistical, but a handful of law professors and journalists have argued that students of color seem to be disproportionately targeted for allegations and punished more severely.

Ben Trachtenberg, University of Missouri law professor, wrote a law review article published in fall 2017 that argued not just Title IX enforcement but other disciplinary processes “probably” discriminate against minority students and suffer from “implicit bias.”

Higher education institutions, unlike elementary and secondary schools, are not required to publish demographic data about disciplined students, so even if racial disparities exist they can’t be evaluated, according to the article.

Tractenberg also said the “broad and vague definitions of offenses, limited access to legal counsel, and irregular procedures” make it more likely that minority students will suffer “disproportionate suspensions and other punishment.”

Around the same time, Emily Yoffe (below) published a three-part series on campus sexual-assault procedures in The Atlantic, one of which dealt with the little-studied racial dynamics.

MORE: Appeals court forces UMich to allow cross-examination

She noted that a federal investigation forced Colgate University to divulge demographics in sexual-misconduct proceedings, which showed that black students were half of those accused in one year. Black students were 4 percent of the campus population the same year. Yoffe also highlighted research by Harvard Law Prof. Janet Halley on allegations against black men by white women.

Two years earlier, Halley’s colleague Jeannie Suk Gersen made an argument that sounds similar to the steering committee’s open letter.

“[I]f we have learned from the public reckoning with the racial impact of over-criminalization, mass incarceration, and law enforcement bias, we should heed our legacy of bias against black men in rape accusations,” the law professor wrote in a New Yorker column.

“The ‘always believe’ credo will aggravate and hide this context, aided by campus confidentiality norms that make any racial pattern difficult to study and expose,” Suk Gersen wrote: “Particularly in this time of student activism around structural and implicit racial bias pervading campuses, examination of the racial impact of Title IX bureaucracy is overdue.”

MORE: UMich claims due process hurts poor students

IMAGE: Andrey Popov/Shutterstock

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