II 

116TH CONGRESS 

1ST SESSION S. 1338 

To amend the Higher Education Act of 1965 to direct the Secretary of 

Education to issue guidance and recommendations for institutions of 

higher education on removing criminal and juvenile justice questions 

from their application for admissions process. 

IN THE SENATE OF THE UNITED STATES 

MAY 7, 2019 

Mr. SCHATZ (for himself, Mr. DURBIN, Mr. BOOKER, Mr. BLUMENTHAL, Mr. 

MARKEY, Ms. WARREN, Mr. CARDIN, Mr. MERKLEY, Ms. DUCKWORTH, 

Ms. CORTEZ MASTO, Mr. MURPHY, Ms. HARRIS, Mr. VAN HOLLEN, Mr. 

BROWN, Ms. KLOBUCHAR, Ms. BALDWIN, and Mr. SANDERS) introduced 

the following bill; which was read twice and referred to the Committee 

on Health, Education, Labor, and Pensions 

A BILL 

To amend the Higher Education Act of 1965 to direct the 

Secretary of Education to issue guidance and recommendations for institutions of higher education on 

removing criminal and juvenile justice questions from 

their application for admissions process. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Beyond the Box for 

5 Higher Education Act of 2019’’. 


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1 SEC. 2. FINDINGS. 

2 Congress finds the following: 

3 (1) An estimated 70,000,000 Americans have 

4 some type of arrest or conviction record that would 

5 appear in a criminal background check. 

6 (2) Each year, more than 600,000 people re7 turn to society from State or Federal prison. 

8 (3) Nearly 11,000,000 Americans are admitted 

9 to city and county jails each year, with an average 

10 daily population of more than 700,000 people. 

11 (4) An estimated 2,100,000 youth under the 

12 age of 18 are arrested every year in the United 

13 States. 

14 (5) 1,700,000 juvenile delinquency cases are 

15 disposed of in juvenile courts annually. 

16 (6) Juvenile records are not always confidential; 

17 many States disclose information about youth in18 volvement with the juvenile justice system or do not 

19 have procedures to seal or expunge juvenile records. 

20 (7) The compounding effects of collateral con21 sequences due to criminal justice involvement hinder 

22 the ability of individuals to reenter society success23 fully. 

24 (8) People of color and low-income people are 

25 disproportionately impacted by the collateral con26 sequences of criminal justice involvement. 


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1 (9) Incarceration leads to decreased earnings, 

2 unemployment, and poverty. 

3 (10) Upon reentry, lower educational attain4 ment, a lack of work skills or history, and the stig5 ma of a criminal record can hinder a formerly incar6 cerated person’s ability to return to their commu7 nities successfully. 

8 (11) One way to improve reentry outcomes is to 

9 increase educational opportunities for people with a 

10 criminal or juvenile justice history. 

11 (12) By reducing rearrests and reconvictions, 

12 and by increasing educational attainment, formerly 

13 incarcerated individuals are better situated to find 

14 stable employment, contributing to their commu15 nities. 

16 SEC. 3. BEYOND THE BOX FOR HIGHER EDUCATION. 

17 Part B of title I of the Higher Education Act of 1965 

18 (20 U.S.C. 1011 et seq.) is amended by adding at the end 

19 the following: 

20 ‘‘SEC. 124. BEYOND THE BOX FOR HIGHER EDUCATION. 

21 ‘‘(a) TRAINING AND TECHNICAL ASSISTANCE.— 

22 ‘‘(1) IN GENERAL.—The Secretary, acting 

23 through the Office of Policy, Planning, and Innova24 tion of the Office of Postsecondary Education of the 

25 Department and with consultation from the DepartVerDate Sep 11 2014 04:38 May 11, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 \\ALPHA3\E\BILLS\S1338.IS S1338

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1 ment of Justice and relevant community stake2 holders, shall issue guidance and recommendations 

3 for institutions of higher education to remove crimi4 nal and juvenile justice questions from their applica5 tion for admissions process. 

6 ‘‘(2) GUIDANCE AND RECOMMENDATIONS.—The 

7 guidance and recommendations issued under para8 graph (1) shall include the following: 

9 ‘‘(A) If an institution of higher education 

10 collects criminal or juvenile justice information 

11 on applicants for admission, it is recommended 

12 that the institution determine whether this in13 formation is necessary to make an informed ad14 mission decision and whether it would be appro15 priate to remove these questions from the appli16 cation. 

17 ‘‘(B) If an institution of higher education 

18 determines that it is appropriate to remove 

19 criminal or juvenile justice questions from the 

20 institution’s application for admissions process, 

21 it is recommended that the institution comply 

22 with the following: 

23 ‘‘(i) If criminal or juvenile justice 

24 questions are necessary for the other as25 pects of the institution’s interactions with 


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1 applicants, identify those specific inter2 actions in which it is appropriate to ask 

3 such questions. 

4 ‘‘(ii) In non-admissions interactions, 

5 inquire about criminal or juvenile justice 

6 history transparently and clearly inform 

7 applicants as early as possible how to re8 spond to the inquiry. 

9 ‘‘(iii) In non-admissions inquiries 

10 about criminal or juvenile justice history, 

11 ensure the questions are specific and nar12 rowly focused, and make it clear that an13 swering the questions may not negatively 

14 impact applicants’ chances of enrollment. 

15 ‘‘(iv) In non-admissions inquiries 

16 about criminal or juvenile justice history, 

17 give applicants the opportunity to explain 

18 criminal or juvenile justice involvement and 

19 preparedness for postsecondary study. 

20 ‘‘(v) Provide staff of the institution 

21 who have access to a prospective or current 

22 student’s criminal or juvenile justice his23 tory, the necessary and proper training on 

24 the effective use of criminal or juvenile jus25 tice history data, including the problems 


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1 associated with this information, the types 

2 of supporting documents that may need to 

3 be obtained, and the appropriate privacy 

4 protections that must be put in place. 

5 ‘‘(C) If an institution of higher education 

6 determines that it is necessary to inquire about 

7 the criminal or juvenile justice history of appli8 cants for admission, it is recommended that the 

9 institution comply with the following: 

10 ‘‘(i) Delay the request for, or consid11 eration of, such information until after an 

12 admission decision has been made to avoid 

13 a chilling effect on applicants whose crimi14 nal or juvenile justice involvement may ul15 timately be determined irrelevant by the 

16 institution. 

17 ‘‘(ii) Provide notice and justification 

18 for applicants within 30 days if, upon re19 ceiving information regarding applicants’ 

20 criminal or juvenile justice involvement, 

21 the admission to the institution is denied 

22 or rescinded based solely on the applicant’s 

23 criminal or juvenile justice involvement. 

24 ‘‘(iii) Inquire about criminal or juve25 nile justice history transparently and clearVerDate Sep 11 2014 04:38 May 11, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 \\ALPHA3\E\BILLS\S1338.IS S1338

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1 ly inform applicants as early as possible in 

2 the application process how to respond to 

3 the inquiry. 

4 ‘‘(iv) Ensure the questions are specific 

5 and narrowly focused. 

6 ‘‘(v) Give applicants the opportunity 

7 to explain criminal or juvenile justice in8 volvement and preparedness for postsec9 ondary study. 

10 ‘‘(vi) Provide admissions personnel, 

11 registrars, and any other relevant staff of 

12 the institution, as well as any other staff 

13 that should have access to a prospective or 

14 current student’s criminal or juvenile jus15 tice history, the necessary and proper 

16 training on the effective use of criminal or 

17 juvenile justice history data, including the 

18 biases or limitations associated with this 

19 information, the types of supporting docu20 ments that may need to be obtained, and 

21 the appropriate privacy protections that 

22 must be put in place. 

23 ‘‘(3) TRAINING AND TECHNICAL ASSISTANCE.— 

24 ‘‘(A) IN GENERAL.—The Secretary, acting 

25 through the Office of Postsecondary Education 


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1 of the Department, shall use funds available to 

2 the Department to provide institutions of high3 er education with training and technical assist4 ance on developing policies and procedures 

5 aligned with the recommendations described in 

6 paragraph (2). 

7 ‘‘(B) TRAINING.—The training described 

8 in subparagraph (A) shall include— 

9 ‘‘(i) training for admissions and finan10 cial aid personnel and enrollment manage11 ment staff of an institution of higher edu12 cation to understand and evaluate an ap13 plicant if— 

14 ‘‘(I) the institution makes a de15 termination under paragraph (2)(A) 

16 to continue asking criminal or juvenile 

17 justice history questions in the admis18 sions process; or 

19 ‘‘(II) the institution makes a de20 termination under paragraph (2)(A) 

21 to remove criminal or juvenile justice 

22 history questions in the admissions 

23 process, but continues to make crimi24 nal or juvenile justice history inquiries 

25 in non-admissions settings; 


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1 ‘‘(ii) training to ensure that if an in2 stitution does not ask criminal or juvenile 

3 justice history questions, that proxy ques4 tions or factors are not used in lieu of 

5 criminal or juvenile justice history informa6 tion; 

7 ‘‘(iii) training for financial aid per8 sonnel and any other staff of an institution 

9 of higher education involved with campus 

10 employment to provide guidance related to 

11 work study programs or on campus em12 ployment available to formerly incarcerated 

13 or juvenile adjudicated individuals; 

14 ‘‘(iv) training for registrars, academic 

15 counselors, student housing staff, student 

16 life staff, and any other staff of an institu17 tion of higher education who would have 

18 access to a student’s criminal or juvenile 

19 justice information when the student is an 

20 enrolled student; and 

21 ‘‘(v) training for career counselors to 

22 ensure that students with involvement in 

23 the criminal or juvenile justice system are 

24 provided with targeted career guidance, 

25 made aware of potential barriers to emVerDate Sep 11 2014 04:38 May 11, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 \\ALPHA3\E\BILLS\S1338.IS S1338

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1 ployment or licensure, and provided assist2 ance to respond to these barriers. 

3 ‘‘(b) RESOURCE CENTER.—The Secretary shall de4 velop a resource center that will serve as the repository 

5 for— 

6 ‘‘(1) best practices as institutions of higher edu7 cation develop and implement practices aligned with 

8 the recommendations described in subsection (a)(2) 

9 to ensure the successful educational outcomes of stu10 dents with criminal or juvenile justice histories; and 

11 ‘‘(2) supplemental research on criminal and ju12 venile justice-involved individuals and postsecondary 

13 education.’’. 

14 SEC. 4. FINANCIAL AID. 

15 Section 483(a) of the Higher Education Act of 1965 

16 (20 U.S.C. 1090(a)) is amended by adding at the end the 

17 following: 

18 ‘‘(13) RESTRICTION ON QUESTION OF CONVIC19 TION FOR POSSESSION OR SALE OF ILLEGAL

20 DRUGS.—Notwithstanding any other provision of 

21 law, the Secretary shall not include on any form de22 veloped under this section, a question about the con23 viction of an applicant for the possession or sale of 

24 illegal drugs.’’. 

Æ 


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