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Findings and Purpose.
Prohibition on Inquiring about Criminal History in Admissions Decisions.
Notice and Posting Requirements.
Implementation and Enforcement.
This Article 50 may be referred to as the “Beyond the Box in College Admissions Ordinance.”
(a) Around the country, individuals are often plagued by old or minor arrest or conviction records that discourage them from applying for educational opportunities because a “box” on the application requires disclosure of criminal history information that may exclude them from consideration. Research indicates that the collection and use of criminal history information in the application process for post-secondary institutions constitutes a formidable barrier for many individuals with criminal records. Specifically, data suggests that pre-admission inquiries for prior felony convictions is associated with application attrition on college applications.
(b) The federal government and the higher education industry have acknowledged this problem. In 2016, the Obama Administration encouraged higher education institutions throughout the country to take the Fair Chance Higher Education Pledge to develop practices to provide formerly incarcerated individuals with a fair shot at educational opportunities. Similarly, the United States Department of Education released a resource guide titled “Beyond the Box,” which provided information for colleges to examine and remove barriers to pursuing a higher education for citizens with criminal records. Several postsecondary educational institutions have voluntarily removed questions about criminal history from their admissions procedures, and The Common Application, Inc., has announced that it will soon allow its member institutions to omit criminal history questions from their applications.
(c) In California, it is estimated that approximately eight million Californians have been arrested or convicted. Thousands of people in our local community are directly impacted by barriers to full reintegration into society based on these records. Pre-admission inquiries into prior felony convictions also magnify racial disparities in the criminal justice system, resulting in a particularly negative impact on applicants of color seeking admission to post-secondary educational institutions.
(d) Because a post-secondary education is a key to labor market success, policies that increase educational opportunities for people with arrest and conviction records reduce recidivism, promote the financial stability of our communities, and enhance the City’s potential for economic growth. Policies that encourage reintegration and reduce recidivism can also help reduce criminal justice costs. The San Francisco Sheriff’s Office predicts it will spend approximately $90,000 to incarcerate persons in jail in 2017-2018. When a person successfully reintegrates and does not return to the criminal justice system, these costs are avoided, allowing scarce public dollars to be reinvested in programs that make our communities stronger and safer.
(e) Many cities and counties in the United States, including San Francisco, have regulated inquiries into criminal history in other contexts, such as in housing and employment decisions. In the higher education context as well, San Francisco should lead the nation in curbing such inquiries. By addressing roadblocks in the pathways to achieving a higher education, this Article 50 will support individuals that have paid their debt to society and served their sentences by assuring them an equal chance to learn and thrive in society. Prohibiting pre-admission inquiries on college applications will provide youth and adults who have been subject to the criminal justice system a fair chance to realize their full potential and become contributing members of society. Given these considerations, it is wise public policy – in the context of the criminal justice system, public health and safety, and the economy – to improve access to post-secondary institutions for individuals with prior arrest or conviction records.
For purposes of this Article 50, the following definitions apply:
“Admit” or “Admission” means a College’s invitation to an Applicant to enroll in the College, including a conditional or deferred invitation, or a decision to place an Applicant on the College’s waitlist.
“Applicant” means (a) a person who has applied for admission to a College; or (b) a person who has inquired about admission to a College, but only where the inquiry relates to the inquiring party’s possible admission to the College, not to inquiries made on behalf of another person.
“Arrest” means questioning, apprehending, taking into custody or detention, holding for investigation, charging, indicting, or trying, a person for any felony, misdemeanor, or other criminal offense. “Arrest” includes these actions only when conducted by a law enforcement officer.
“College” means any private post-secondary educational institution located in San Francisco that awards degrees signifying satisfactory completion of the requirements of a postsecondary educational program at the associate’s level or above. “College” does not include institutions that are part of the State of California, including City College of San Francisco, San Francisco State University, and the University of California.
“Conviction” means an adjudication (following a trial, guilty plea, or no-contest plea) that a person was guilty of any felony or misdemeanor. “Conviction” includes: (a) an adjudication that a person was guilty in a juvenile proceeding of, or had a juvenile petition sustained in connection with, any felony or misdemeanor; and (b) convictions that have been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative, by way of example but not limitation, under California Penal Code Sections 1203.4, 1203.4a, or 1203.41.
“Criminal History” means an Applicant’s record of Arrest or Conviction.
“Director” means the Executive Director of HRC or the Director’s designee.
“HRC” means the Human Rights Commission, or any successor department or office.
(a) A College may not, for the purpose of considering whether to Admit an Applicant, inquire about the Applicant’s Criminal History, such as by making any direct or indirect statement, question, prompting, or other communication, orally or in writing, personally or through an agent, using any mode of communication, including, but not limited to, application forms and interviews. “Inquire,” as used in this subsection (a), includes providing, or directing the Applicant to, an application form that is subsequently viewed by an Applicant. This subsection (a) applies to application forms devised or administered by third parties that Colleges use for the purpose of considering whether to Admit the Applicant.
(b) As subsection (a) indicates, a College may not use application forms that contain a request for information about the Applicant’s Criminal History. A College is in violation of this Article 50 if it makes any such application form available to the general public or to potential Applicants in any format, including but not limited to, posting it on the College’s website, or distributing paper copies.
(c) Nothing in this Article 50 prohibits an Applicant from voluntarily, and without prompting, disclosing the Applicant’s Criminal History.
(d) A College that receives Criminal History from a person or entity other than the Applicant is not in violation of this Article 50 if the College did not receive the information in response to an inquiry about the Applicant’s Criminal History for the purpose of considering whether to Admit the Applicant.
(e) Nothing in this Article 50 prohibits a College from requesting, or obtaining, Criminal History from an Applicant after an Applicant has accepted Admission and agreed to enroll in the College, but Colleges are strongly encouraged to limit inquiry and subsequent use of the information to the following purposes:
(1) Offering counseling or support services;
(2) Making decisions about the Applicant’s eligibility to participate in activities and aspects of campus life, such as housing; and
(3) Making decisions about the Applicant’s eligibility for financial aid or scholarships.
(f) Nothing in this Article 50 prohibits a College from, at any time, inquiring about Criminal History when an Applicant has applied to an educational program in a field in which federal or state licensing requirements restrict persons with Criminal History from employment or licensing, as long as the inquiry and subsequent use of the information is limited to the purpose of advising Applicants that their Criminal History may limit the Applicant’s ability to:
(1) Participate in educational requirements, such as clinical practice;
(2) Obtain employment; and
(3) Receive professional or occupational licenses or admissions.
(g) Nothing in this Article 50 prohibits a College from, at any time, inquiring about Criminal History for the purpose of deciding whether to Admit an Applicant who will require, in order to enroll, the College to provide a Certificate of Eligibility for Nonimmigrant (F-1) Student Status.
(a) Colleges shall state in all applications and recruitment materials that, consistent with the requirements of this Article 50, the College will not inquire about Applicants’ criminal history for the purpose of deciding whether to offer Admission. For purposes of this subsection (a), “recruitment materials” means brochures, flyers, or other documents that the College makes available to Applicants.
(b) HRC shall, publish and make available to Colleges, in English, Spanish, and Chinese, and all languages spoken by more than 5% of the San Francisco population, a notice suitable for posting that informs Applicants of their rights under this Article. HRC shall update this notice on December 1 of any year in which there is a change in the languages spoken by more than 5% of the San Francisco population.
(c) Colleges shall post the notice referenced in subsection (b) prominently on their website and at any location under their control that is frequently visited by Applicants or potential Applicants. At a minimum, the notice shall contain the following information:
(1) A description of the restrictions and requirements that Section 5004 imposes on Colleges when considering Applicants for Admission; and
(2) The telephone number and email address that an Applicant, or potential Applicant, may use to make a report to HRC if the Applicant believes a College has violated any provision of this Article 50.
(Added by Ord. 187-19, File No. 190479, App. 8/9/2019, Eff. 9/9/2019, Oper. 9/9/2019)
(a) HRC is authorized to take appropriate steps to enforce and coordinate enforcement of this Article 50, including the investigation of possible violations of this Article.
(b) An Applicant or any other person may report to HRC any suspected violation of this Article 50. HRC shall encourage reporting pursuant to this subsection (b) by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the Applicant or person reporting the violation; provided, however, that HRC may disclose the name and identifying information of the Applicant or person as necessary to enforce this Article 50 or for other appropriate purposes.
(c) The Director shall establish rules governing the administrative process for determining and appealing violations of this Article 50. The rules shall include procedures for providing the College with the following:
(1) Notice that it may have violated this Article 50;
(2) A right to respond to the notice;
(3) Notice of the Director’s determination of a violation; and
(4) An opportunity to appeal the Director’s determination to a hearing officer, who is appointed by the Controller.
(d) If the College appeals the Director’s determination of a violation, the Director’s determination shall be considered prima facie evidence of a violation, and the College shall have the burden of proving, by a preponderance of the evidence, that the Director’s determination of a violation is incorrect. The hearing officer’s decision of the appeal shall constitute the City’s final decision.
(g) The City Attorney may bring a civil action in a court of competent jurisdiction against a College for violating any requirement of this Article 50, and, upon prevailing, shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation, including a civil penalty, and shall be awarded reasonable attorneys’ fees and costs.
(h) In any administrative or civil action brought under this Article 50, the Agency or court, as the case may be, shall award interest on all amounts due and unpaid at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code.
(i) In the event the City brings a civil enforcement action for violation of this Article 50, any person or association by or with a direct interest in compliance with this Article may join in that enforcement action as a real party in interest. In the event the City does not institute a civil enforcement action for violation of this Article, a directly interested person or association, after receiving confirmation from the City Attorney that the City does not intend to institute a civil suit, may bring a civil proceeding on its own behalf and on behalf of the City against that College and seek all remedies available for violation of this Article available under state law, including but not limited to monetary, injunctive, and declaratory relief. Should actual damages incurred by such a violation be difficult to determine, liquidated damages may be awarded at the rate of $1,000 per day of violation, to be distributed equally between a private plaintiff, if any, and the general fund of the City, unless such liquidated damages award is found to be so excessive in relation to the violator’s resources as to constitute a penalty.
(j) A directly interested person or association may institute a civil action under subsection (i) only if:
(1) The directly interested person or association has filed a complaint with HRC;
(2) 90 days have passed since the filing of the complaint;
(3) After such 90-day period, the directly interested person or association provides notice to the Director and the City Attorney of the intent to initiate civil proceedings; and
(4) The City Attorney has confirmed in writing that the City does not intend to initiate a civil suit.
(k) The Director shall have authority to adopt regulations or guidelines that implement the provisions of this Article 50.
(l) The remedies, penalties, and procedures provided under this Article 50 are cumulative of any other remedies, penalties, or procedures that may be available to address conduct that is violative of this Article.
(a) Subject to the exceptions noted in subsection (b), Colleges shall retain, for a period of three years:
(1) Completed applications, if they contain questions about Criminal History;
(2) Incomplete applications, if they contain questions about Criminal History;
(3) Blank application forms and other admissions documents that reflect questions posed to Applicants for a period of three years from the last use of the form or document, regardless of whether the form contains questions about Criminal History; and
(4) Any other records about the Applicant, if they contain questions about Criminal History or other evidence of the College’s noncompliance with Section 5004.
(b) The recordkeeping requirements in subsection (a) do not require Colleges to retain documents that an Applicant submitted along with the Application, such as artwork portfolios, letters of recommendation, test scores, or essays, regardless of whether they reference Criminal History.
(c) Colleges shall allow HRC access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Article 50.
(d) It is recommended, but not required, that Colleges retain, for a period of three years, applications that were begun but not completed.
(e) Colleges shall provide information to HRC, or HRC’s designee, as may be required to verify the College’s compliance with this Article 50.
(f) In no event shall HRC require a College to provide any information or documents the disclosure of which would violate state or federal law.
(g) Where a College does not maintain or retain adequate records documenting compliance with this Article 50 or does not allow HRC reasonable access to such records, it shall be presumed that the College did not comply with this Article, absent clear and convincing evidence otherwise.
(h) Pursuant to the Director’s rulemaking authority under this Article 50, the Director shall adopt rules that establish procedures for Colleges to maintain and retain accurate records and to provide annual reporting of compliance to HRC in a manner that does not require disclosure of any information that would violate State or Federal privacy laws.
The City recognizes that in some circumstances state or federal law may govern some of the matters addressed in this Article 50. Nothing in this Article shall be interpreted or applied by a court or HRC or any other part of City government so as to create any requirement, power, or duty in conflict with federal or state law or with a requirement of any government agency, including any agency of City government, implementing federal or state law. Consistent with the foregoing preemption principle, for example, HRC is authorized to not enforce any provision of this Article upon determining that its application in a particular context would conflict with federal or state law or with a requirement of a government agency implementing federal or state law. Further, this Article does not prevent Colleges from inquiring about Criminal History where such inquiry is required by federal or state law or a government agency implementing federal or state law, but this Article does require that such an inquiry be limited to those aspects of inquiries regarding Criminal History that are necessary to comply with federal or state law. These examples are illustrative and do not limit the scope of the preemption principle stated in this Section 5008.
If any section, subsection, sentence, clause, phrase, or word of this Article 50, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of the Article. The Board of Supervisors hereby declares that it would have passed this Article and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of the Article or application thereof would be subsequently declared invalid or unconstitutional.
(a) This Article 50 shall not be construed to require a College to give preference to or admit a student with a Criminal History. Moreover, this Article shall not be construed to limit a College’s discretion to choose its students from applicants, consistent with existing law and with this Article.