Postsecondary Admissions and Employment Applications
States can prevent public and private postsecondary institutions and employers from asking about or considering juvenile records in admission and hiring decisions.
Problem
It is often possible for employers, licensing boards, and postsecondary educational providers to obtain information about juvenile history despite the existence of record confidentiality and clearance authorities. Such information is commonly obtained through self-disclosure on the part of applicants who are unsure about the extent to which their juvenile history is implicated in questions about criminal history. Such disclosure is particularly problematic in the context of private employment and postsecondary admissions where there are generally few restrictions on the use of juvenile justice history to disqualify applicants.
Recommendations
1. Prohibit juvenile inquiries
Bar employers, licensing bodies, and postsecondary educational providers from inquiring about the juvenile justice history of applicants.
Sample legislative language
a) Except as provided by this section, no employer, licensing body, or postsecondary educational provider shall at any time explicitly inquire about a juvenile court proceeding or disposition related to an applicant for employment, licensure, admission, or enrollment.
b) The prohibitions in subsections (a) and (b) shall not apply where state or federal law explicitly requires the denial or limitation of employment, licensure, admission, or enrollment on the basis of an applicant’s prior adjudication in juvenile court.2
c) Nothing in this section limits the ability of a postsecondary educational provider to inquire about or use information about juvenile court proceedings or dispositions to inform the placement of currently admitted or enrolled students in specific courses of training, on-campus housing, or other activities administered or sponsored by the institution or program.
Exceptions may be appropriate in limited instances where a specific offense raises a significant public safety concern in the context of the duties and responsibilities of a particular job or activity. Explicit exceptions to similar laws that are currently in effect are rare, however, and generally only apply to people adjudicated of serious violent or sexual offenses who are seeking jobs or licensure involving the care of children or vulnerable adults. Where exceptions apply, they should be limited to narrowly defined offense categories and should not be authorized without requiring individualized consideration of the applicant, the nature and circumstances of the offense, evidence of rehabilitation, and other mitigating factors.State policy example
California: Cal Lab Code § 432.7
(2) An employer, whether a public agency or private individual or corporation, shall not ask an applicant for employment to disclose, through any written form or verbally, information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of the juvenile court. An employer also shall not seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of the juvenile court.
2. Prohibit consideration of juvenile history
Prohibit employers, licensing bodies, and postsecondary educational providers from denying applicants due to information about juvenile history that may come to light despite limitations on access to records and prohibitions on inquiries.
Sample legislative language
No employer, licensing body, or postsecondary educational provider shall deny or limit the employment, licensure, admission, or enrollment of an applicant due solely, or in part, to a juvenile court proceeding or disposition related to the applicant, except where explicitly authorized by law.3
Exceptions may be appropriate in limited instances where a specific offense raises a significant public safety concern in the context of the duties and responsibilities of a particular job or activity. Explicit exceptions to similar laws that are currently in effect are rare, however, and generally only apply to people adjudicated of serious violent or sexual offenses who are seeking jobs or licensure involving the care of children or vulnerable adults. Where exceptions apply, they should be limited to narrowly defined offense categories and should not be authorized without requiring individualized consideration to the applicant, the nature and circumstances of the offense, evidence of rehabilitation, and other mitigating factors.State policy example
Illinois: 20 ILCS 2105/2105-135 (use of juvenile history in licensure determinations)
(c) The Department [of Professional Regulation] shall not require applicants to report the following information and shall not consider the following criminal history records in connection with an application for licensure or registration:
(1) juvenile adjudications of delinquent minors as defined in Section 5-105 of the Juvenile Court Act of 1987 [705 ILCS 405/5-105] subject to the restrictions set forth in Section 5-130 of that Act [705 ILCS 405/5-130].
3. Clarify what’s considered
Require applications to clarify the extent to which juvenile history may be considered.
Sample legislative language
a) An application or inquiry related to employment, licensure, admission, or enrollment that references the criminal history of an applicant shall clearly state that juvenile court proceedings and dispositions need not be disclosed and will not be used as a basis for the denial or limitation of employment.
b) The prohibition in subsection (a) shall not apply where state or federal law explicitly requires or authorizes the denial or limitation of employment,4 licensure, admission, or enrollment on the basis of an applicant’s prior adjudication in juvenile court. However, in such cases, an application or inquiry related to employment, licensure, admission, or enrollment shall (1) state with specificity the types of juvenile court adjudications that require denial or limitation; (2) explicitly limit any inquiry into such adjudications; (3) state that expunged or sealed records need not be disclosed and will not be considered; (4) briefly explain how adjudications are factored into the decision-making process; and (5) provide the applicant with an opportunity to explain any mitigating circumstances surrounding the offense or provide evidence of rehabilitation.
Exceptions may be appropriate in limited instances where a specific offense raises a significant public safety concern in the context of the duties and responsibilities of a particular job or activity. Explicit exceptions to similar laws that are currently in effect are rare, however, and generally only apply to people adjudicated of serious violent or sexual offenses who are seeking jobs or licensure involving the care of children or vulnerable adults. Where exceptions apply, they should be limited to narrowly defined offense categories and should not be authorized without requiring individualized consideration to the applicant, the nature and circumstances of the offense, evidence of rehabilitation, and other mitigating factors.State policy example
Washington: Rev. Code Wash. (ARCW) § 28B.160.020 (general postsecondary admissions inquiries and exceptions)
(1) Except as provided in subsection (2) of this section, an institution of higher education may not use an initial admissions application that requests information about the criminal history of the applicant.
(2) An institution of higher education may, but is not required to, use a third-party admissions application that contains information about the criminal history of the applicant if the institution of higher education posts a notice on its web site stating that the institution of higher education may not automatically or unreasonably deny an applicant’s admission or restrict access to campus residency based on an applicant’s criminal history.