II 116th CONGRESS 1st Session S. 1338 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. Short title This Act may be cited as the Beyond the Box for Higher Education Act of 2019 . 2. Findings Congress finds the following: (1) An estimated 70,000,000 Americans have some type of arrest or conviction record that would appear in a criminal background check. (2) Each year, more than 600,000 people return to society from State or Federal prison. (3) Nearly 11,000,000 Americans are admitted to city and county jails each year, with an average daily population of more than 700,000 people. (4) An estimated 2,100,000 youth under the age of 18 are arrested every year in the United States. (5) 1,700,000 juvenile delinquency cases are disposed of in juvenile courts annually. (6) Juvenile records are not always confidential; many States disclose information about youth involvement with the juvenile justice system or do not have procedures to seal or expunge juvenile records. (7) The compounding effects of collateral consequences due to criminal justice involvement hinder the ability of individuals to reenter society successfully. (8) People of color and low-income people are disproportionately impacted by the collateral consequences of criminal justice involvement. (9) Incarceration leads to decreased earnings, unemployment, and poverty. (10) Upon reentry, lower educational attainment, a lack of work skills or history, and the stigma of a criminal record can hinder a formerly incarcerated person’s ability to return to their communities successfully. (11) One way to improve reentry outcomes is to increase educational opportunities for people with a criminal or juvenile justice history. (12) By reducing rearrests and reconvictions, and by increasing educational attainment, formerly incarcerated individuals are better situated to find stable employment, contributing to their communities. 3. Beyond the box for higher education Part B of title I of the Higher Education Act of 1965 ( 20 U.S.C. 1011 et seq.) is amended by adding at the end the following: 124. Beyond the box for higher education (a) Training and technical assistance (1) In general The Secretary, acting through the Office of Policy, Planning, and Innovation of the Office of Postsecondary Education of the Department and with consultation from the Department of Justice and relevant community stakeholders, shall issue guidance and recommendations for institutions of higher education to remove criminal and juvenile justice questions from their application for admissions process. (2) Guidance and recommendations The guidance and recommendations issued under paragraph (1) shall include the following: (A) If an institution of higher education collects criminal or juvenile justice information on applicants for admission, it is recommended that the institution determine whether this information is necessary to make an informed admission decision and whether it would be appropriate to remove these questions from the application. (B) If an institution of higher education determines that it is appropriate to remove criminal or juvenile justice questions from the institution's application for admissions process, it is recommended that the institution comply with the following: (i) If criminal or juvenile justice questions are necessary for the other aspects of the institution's interactions with applicants, identify those specific interactions in which it is appropriate to ask such questions. (ii) In non-admissions interactions, inquire about criminal or juvenile justice history transparently and clearly inform applicants as early as possible how to respond to the inquiry. (iii) In non-admissions inquiries about criminal or juvenile justice history, ensure the questions are specific and narrowly focused, and make it clear that answering the questions may not negatively impact applicants’ chances of enrollment. (iv) In non-admissions inquiries about criminal or juvenile justice history, give applicants the opportunity to explain criminal or juvenile justice involvement and preparedness for postsecondary study. (v) Provide staff of the institution who have access to a prospective or current student’s criminal or juvenile justice history, the necessary and proper training on the effective use of criminal or juvenile justice history data, including the problems associated with this information, the types of supporting documents that may need to be obtained, and the appropriate privacy protections that must be put in place. (C) If an institution of higher education determines that it is necessary to inquire about the criminal or juvenile justice history of applicants for admission, it is recommended that the institution comply with the following: (i) Delay the request for, or consideration of, such information until after an admission decision has been made to avoid a chilling effect on applicants whose criminal or juvenile justice involvement may ultimately be determined irrelevant by the institution. (ii) Provide notice and justification for applicants within 30 days if, upon receiving information regarding applicants’ criminal or juvenile justice involvement, the admission to the institution is denied or rescinded based solely on the applicant's criminal or juvenile justice involvement. (iii) Inquire about criminal or juvenile justice history transparently and clearly inform applicants as early as possible in the application process how to respond to the inquiry. (iv) Ensure the questions are specific and narrowly focused. (v) Give applicants the opportunity to explain criminal or juvenile justice involvement and preparedness for postsecondary study. (vi) Provide admissions personnel, registrars, and any other relevant staff of the institution, as well as any other staff that should have access to a prospective or current student’s criminal or juvenile justice history, the necessary and proper training on the effective use of criminal or juvenile justice history data, including the biases or limitations associated with this information, the types of supporting documents that may need to be obtained, and the appropriate privacy protections that must be put in place. (3) Training and technical assistance (A) In general The Secretary, acting through the Office of Postsecondary Education of the Department, shall use funds available to the Department to provide institutions of higher education with training and technical assistance on developing policies and procedures aligned with the recommendations described in paragraph (2). (B) Training The training described in subparagraph (A) shall include— (i) training for admissions and financial aid personnel and enrollment management staff of an institution of higher education to understand and evaluate an applicant if— (I) the institution makes a determination under paragraph (2)(A) to continue asking criminal or juvenile justice history questions in the admissions process; or (II) the institution makes a determination under paragraph (2)(A) to remove criminal or juvenile justice history questions in the admissions process, but continues to make criminal or juvenile justice history inquiries in non-admissions settings; (ii) training to ensure that if an institution does not ask criminal or juvenile justice history questions, that proxy questions or factors are not used in lieu of criminal or juvenile justice history information; (iii) training for financial aid personnel and any other staff of an institution of higher education involved with campus employment to provide guidance related to work study programs or on campus employment available to formerly incarcerated or juvenile adjudicated individuals; (iv) training for registrars, academic counselors, student housing staff, student life staff, and any other staff of an institution of higher education who would have access to a student’s criminal or juvenile justice information when the student is an enrolled student; and (v) training for career counselors to ensure that students with involvement in the criminal or juvenile justice system are provided with targeted career guidance, made aware of potential barriers to employment or licensure, and provided assistance to respond to these barriers. (b) Resource center The Secretary shall develop a resource center that will serve as the repository for— (1) best practices as institutions of higher education develop and implement practices aligned with the recommendations described in subsection (a)(2) to ensure the successful educational outcomes of students with criminal or juvenile justice histories; and (2) supplemental research on criminal and juvenile justice-involved individuals and postsecondary education. . 4. Financial aid Section 483(a) of the Higher Education Act of 1965 ( 20 U.S.C. 1090(a) ) is amended by adding at the end the following: (13) Restriction on question of conviction for possession or sale of illegal drugs Notwithstanding any other provision of law, the Secretary shall not include on any form developed under this section, a question about the conviction of an applicant for the possession or sale of illegal drugs. .