Op-ed: The University’s felony disclosure policy violates due process

Thursday, March 14, 2019 - 9:11pm

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We, the Undergraduate Chapter of the American Civil Liberties Union at the University of Michigan, oppose the University’s decision to adopt a mandatory self-disclosure policy that requires employees to report felony charges and convictions. University faculty, staff and students have not been shy in their opposition to the policy since it was announced last month. Critics have voiced their disapproval of the policy at town halls and Board of Regents meetings and in an open letter to the University that has nearly 2,000 signatories (and counting).

Those opposed to the new policy have correctly pointed out that the stated purpose of the policy — to “better promote safety and security and mitigate potential risk” — is undermined by its discretionary nature. Moreover, they have noted that the policy directly contradicts the University’s commitment to diversity, equity and inclusion. Alongside these concerns, it is also important to consider the ways in which the felony disclosure policy also undermines due process.

Under the new felony disclosure policy, the University’s Human Resources department is solely responsible for assessing whether those who self-disclose a felony charge or conviction pose a threat to campus safety and security. As of now, it still remains unclear about what sort of factors play into this determination. In a recent Michigan Daily article, Harper explained that in the event of reporting a felony, the “Human Resources department will take a look at what you’ve been charged and convicted, and make a determination of what’s the impact of that charge in relationship to where you work.” Yet the criteria the University uses in this assessment have not been revealed to the public.

According to the open letter penned by the Carceral State Project’s steering committee, at least two students who have previously disclosed their criminal records to the University have faced negative outcomes — one was asked to leave school and the other had an employment offer rescinded. The letter further states that their criminal histories were unrelated to their roles within the University community. With these incidents in mind, it is especially concerning that, under the new policy, the University claims to assess the cases of employees who disclose felonies in relation to the jobs they hold. With the new policy’s vague and non-transparent assessment process, there is no way to hold the University accountable to such a standard.

Furthermore, in explaining the purpose of the policy, Harper has explained that “we don’t want someone that’s been charged or convicted of embezzlement to be handling accounts. We wouldn’t want someone who has been charged with child molestation to be working with minors.” Both of these hypotheticals explain the policy as a way of protecting against abuses of power, yet the policy appears to victimize the relatively powerless at the University, including student employees and others not covered by collective bargaining agreements. Further, the University already has a background check process to handle these issues when an employee is hired, and if a crime occurred after the employee was hired, the justice system should be trusted to administer the proper punishment — not the University.

In requiring the disclosure of felony charges and convictions alike, the University also criminalizes those who are accused of committing crimes but have not undergone any formal adjudication process, whether by the University or a court of law. Felony charges are not an indicator of culpability, and it is a mistake for the University to criminalize those who incur felony charges by requiring them to self-disclose these charges. Moreover, we know that policing disproportionately affects communities of color — for instance, Black Americans are 2.7 times as likely to be arrested for drug-related offenses than white Americans, despite the fact that Black people and white people use and sell drugs at similar rates. As they are more likely to be arrested for felony violations, Black Americans are more likely to be negatively affected by the University’s disclosure policy.

By failing to provide transparency in how felony disclosures are to be assessed, and in requiring the disclosure of felony charges before any formal adjudication procedure has taken place, the new policy demonstrates a lack of concern for campus safety and security. In criminalizing members of the University community, the policy contravenes the University’s commitment to diversity, equity and inclusion. In doing so behind closed doors, before the accused has been tried in a court of law, the policy also clearly violates due process. Such a policy has no place on our campus and should be rescinded immediately. If the administration is truly dedicated to the enrichment of our campus, it should consult with the University community about how it can promote diversity and safety on campus without contributing to the problem of over-criminalization.

The Undergraduate Chapter of the ACLU is a student organization on campus fighting to protect civil liberties. You can contact the organization at acluundergrads-board@umich.edu.

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