This week, Tulane’s student government heard a proposal to “Ban the Box” on undergraduate admission applications, a move that would follow Louisiana’s new law not to ask applicants if they have been convicted of a crime until after admission — unless it were a sexual assault or stalking. Despite strong arguments in favor, some students expressed concerns that if Tulane Admission can’t ask this question, then Admission might unfairly deny more black and Latino applicants by assuming all are criminals without proof they are not. This logic, rooted in a flawed study discussed below, poses a cynical view of structural racism within Tulane Admission.

The student government ultimately moved to table the proposal to learn more about the actual impacts of criminal background inquiries. In response, I will table all activities with Tulane until the proposal passes.

The Civil Rights community, including directly impacted people and allies, has known for decades that asking the question about criminal history does three things. First, it deters people from applying, as we know this is used to exclude us. Second, it has been statistically proven that our applications are generally sent immediately to the trash. Finally, it is statistically proven that black and Latino people are hit the hardest due to structural racism in policing patterns, prosecutorial and judicial discretion, amplified by the personal discretion of an employer of admissions office. This is not just “word on the street,” but also acknowledged by every leader, researcher, lawyer and organizer.

All of Us or None began the Ban the Box movement in San Francisco, and it has spread exponentially over the past two decades. We have worked at every level to change government and institutional policies. VOTE has been part of pushing the Equal Employment Opportunity Commission to recognize that blanket bans on people with criminal histories runs afoul of Title VII of the Civil Rights Act. Such a ban would disparately impact black and Latino people, and thus, they crafted their 2012 Guidance on Hiring. VOTE was essential in convincing Mayor Landrieu, the Louisiana Legislature, Civil Service Commission, Gov. Edwards and President Obama to all Ban the Box in employment. Education and housing are facing increased scrutiny for disparate impact under Title VI and the Fair Housing Act.

A member of Tulane’s student government cited a study that claims employment for low-skilled, young, black and Latino men goes down after Ban the Box laws are enacted. J. Doleac, B. Hansen (2017). That study also claims employment goes up “significantly” for older low-skilled black men, for college graduates and for black women. Any relevant study, however, would need to use “matching pairs” before and after such new policies are passed, such as in the work of Professor Devah Pager or the matching pair “testing” work of Greater New Orleans Fair Housing Action Center.

The cited study uses data from the annual Current Population Survey (CPS), a sample of less than one percent of Americans. In 2016, CPS surveyed just 259,000 people nationwide, including 20,000 Hispanic men and 15,000 black men. Their target groups – black and Hispanic men, age 25-34 – are even smaller, and the statewide data sets are in the dozens. Furthermore, there was no comparison of effects on low-skilled, young, white males. Thus, they ignored a key element of statistical analysis on disparate impact: comparison to the majority group. The survey is 200 questions long and intentionally excludes people who move (this would include the very transient population of formerly incarcerated people they purport to study) and is not likely to be filled out by people distrustful of government or to be finished by people with literacy issues.

Finally, though applying for a particular job can be a zero-sum game, education is not. Education is important in all aspects of our community, and it would be hypocritical for anyone in the Tulane Community to “help” people with criminal records (as “saviors,” social workers, public defenders, et al.) without also elevating people to earn their own Tulane degree to empower and support their own community.

I look forward to the time when I can work with Tulane students and professors again, in both the undergraduate and graduate schools, but until then I am disappointed in this institution that ultimately showed me such love and acceptance. Fortunately, it is never too late to make the right decision, as I expect the student government to ultimately do. I could start a big campaign with a petition among directly impacted people and organizations, and a long list of alumni, but I won’t, because nobody should have to.

Bruce Reilly, J.D.

Tulane Law School ’14

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