(Mary F. Calvert for The Washington Post)

Earlier this month, the Common Application decided to “ban the box” starting next year — so the million-plus students who use the online form to apply to some 800 colleges nationwide won’t have to disclose whether they have ever been convicted of a crime.

This may be a good thing. If people have been arrested or convicted, served their time and want to apply to college, maybe it isn’t fair to ask them to dredge up and explain an old conviction.

On the other hand, one can understand how a college might have a reasonable desire to know whether it will be admitting convicted criminals to campus. Schools will still be able to collect this information, if they wish, after the question is removed from the main application form. It seems unlikely to us that many will, given the potential political backlash.


Justin Dillon. (Photo by Greg Lorings)

But something was missing from the debate: The question that the Common App is leaving on the application.

All schools will still learn whether an applicant has ever been previously disciplined by another school — including, but not limited to, expulsion, suspension and probation. Some of these cases center on allegations of sexual misconduct and get decided behind closed doors on a far lower standard of proof than the high bar required for conviction in criminal court.

Think about that. The people who run the Common App are saying they don’t think it’s appropriate to ask about your criminal history — when you have had all of the rights of a criminal defendant, including the right to cross-examination, the power to subpoena evidence and witnesses in your favor and the presumption of innocence unless guilt is proved beyond a reasonable doubt. But they do think it’s important to ask whether some other school, without giving you any of those rights, has found you responsible for something based on a mere preponderance of the evidence.

Even if all the school did was put you on probation.

This makes no sense. If bad things that people are accused of doing in the past shouldn’t be relevant to a school’s evaluation of that student, then shouldn’t that apply with even more force when that finding is made without any due process rights and with the lowest burden of proof used to find facts in law?

In our practice, we have seen this more times than we can count — futures ruined by “trauma-informed” Title IX inquiries conducted by ideologically driven investigators who care more about politics than the truth. [Title IX is a 1972 federal law that bans sex discrimination in schools that receive federal funding.]


Scott Bernstein. (GittingsLegal Photography)

The Common App’s decision isn’t rational. It’s just virtue-signaling. It’s a way for the application’s leaders to cheer the egalitarian nature of what they’re doing, while failing to confront the harm inflicted by kangaroo-court decisions made at schools.

If the Common App wants real change in this area, and if it truly doesn’t think that people should be held hostage to their pasts, then its leaders should remove both questions.

If those leaders don’t think that a conviction in the criminal justice system, with all its safeguards — however imperfect they are — is essential for a school to know about, then they cannot reasonably claim that a school must know about the often flawed decisions of a few Title IX functionaries.

But this was not a principled decision. It was a political one — box-banning for the cocktail-party set. Real fairness would just be a little too risky.

Lawyers Justin Dillon and Scott Bernstein, of KaiserDillon PLLC in Washington, D.C., have represented scores of students nationwide in campus sexual assault cases.

Daniel Obregon, a spokesman for the Common Application, responded:

The Common Application is a nonprofit membership organization dedicated to access, equity and integrity in the college admission process that serves more than 800 colleges and universities across 20 countries. Last year, more than one million students, a third of whom are first generation, used the Common App to apply to college.

Recently, we announced that, beginning on August 1, 2019, we will be removing the collection of criminal history information on the “common” portion of the application. However, members who wish to collect criminal history information will be able to do so on their individual member screens.

We made this decision after consulting with our membership a number of times over the past several years. During that time, institutional policies and practices around this question have become less “common,” based on continually evolving legislation at the local, state, federal and international levels, as well as increasingly varied policies and practices among our member institutions. We have made this change to provide members with the greatest flexibility to determine how best to comply with  local requirements and institutional policies.

There is greater commonality in the practices and use of school disciplinary history by our members. For that reason, we have elected to keep the school disciplinary history question on the “common” part of the application at this time. As with all questions on the application, we will continue to evaluate what, if any, adjustments will be necessary to that question in the future.