Ban the Box!

A panel of speakers from All of Us or None, an organization fighting for the rights of people who have been imprisoned, was talking to my senior economics class at Berkeley High School in California. Manuel La Fontaine introduced himself as the father of three, a survivor of juvenile halls, jails, and prisons who organizes to restore the human rights of people inside prisons and those formerly incarcerated. He asked my students to introduce themselves and, if they wished, to disclose any personal connections to prisons, prisoners, or former prisoners.

Student after student did so (approximately 50 percent of my students are African American, 30 percent Latina/o, 20 percent Asian and white). In both classes, nearly everyone spoke of family members or friends who were currently locked up or formerly incarcerated, back on their feet or struggling. A somber weight hung in the room as we finished going around the room. The students’ stories reflect what Michelle Alexander argues about the label “felon” in her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness. That label is increasingly common and has a tremendous impact on our communities. Yet there is a great deal of silence and shame around it. As Manuel and his colleagues shared their stories, they took the shame out of acknowledging an issue of increasing significance in our students’ lives and in our whole social and political landscape: mass incarceration.

This meeting with All of Us or None was part of a unit I created with Rethinking Schools Managing Editor Jody Sokolower, prompted by a reading of Alexander’s book. I’d seen the title of the book when it was first published and frankly wrote off the idea of a “new Jim Crow” as far-fetched. (Alexander actually writes about a similar moment in response to a flier posted in her community.) But I later heard her speak on the radio and was persuaded to pick up the book.

According to Alexander, mass incarceration, justified and organized around the war on drugs, has become the new face of racial discrimination in the United States. In less than 30 years, the prison population has exploded from 300,000 to more than 2 million. What is most striking about these numbers is the racial dimension. More black men are under the control of the criminal justice system, either behind bars or on probation or parole, than were enslaved in 1850. Equally disturbing is Alexander’s description of the lifelong civil and human rights implications of being arrested and serving time in prison. As she explains in her introduction:

Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal.

Her analysis and evidence made it hard for me to believe that I’d ever seen the issue another way—or that I’d missed seeing so much. I was nervous about raising this issue in the classroom, especially because I was having such a strong emotional and intellectual reaction. But, as Jody and I talked, we were soon on our way to designing a unit to engage students with the issue of mass incarceration.

We learned that All of Us or None is leading efforts to “ban the box” at various levels of government hiring. “The box” is the space on employment applications that asks “Have you ever been convicted of a felony?” Research shows that employers who see that box checked either discard those applications automatically or are so influenced by the information it amounts to legal discrimination. All of Us or None wants to free formerly incarcerated people from the necessity of disclosing felony convictions until their job qualifications have been evaluated. So the centerpiece of our unit became a role play on this scenario, specific to Berkeley:

The city has already “banned the box” for local government jobs. The new ordinance will expand this to all employers who conduct business in the city of Berkeley. Under the proposed law, private employers will not be able to ask about an applicant’s conviction history on an initial job application. Background checks will be conducted later in the process, after the applicant’s job qualifications have been screened and an employer has determined that the applicant meets minimum job qualifications. Existing law from the Equal Employment Opportunities Commission states that employers may consider past convictions only if the conviction is substantially job-related. Employers may consider other factors about the conviction as well: recency of the conviction, age at the time of conviction, and evidence of rehabilitation.

Before introducing the role play, we wanted to provide my students with background in the concepts and facts related to mass incarceration. I compiled a set of texts that we approached through close reading, dialogue journals, and Socratic seminar-style discussions (see Reading, Writing, and Rising Up for an introduction to dialogue journals). The New Jim Crow is a challenging text for high schoolers, and Alexander weaves a tight argument that doesn’t lend itself easily to excerpting. So we used several extended quotes from the book to supplement the Alexander interview in Rethinking Schools (“Schools and the New Jim Crow,” winter 2011–12).

We also used excerpts from the graphic novel Prisoners of the War on Drugs. Although it is not the whole story, a focus on racial disparities related to arrest, prosecution, and incarceration in the “war on drugs” is a useful lens to look at ways mass incarceration and the felon label have functioned to maintain and perpetuate racial inequality.

So we asked students to consider the story of Sam, an African American teen living in the inner city, and Alec, a white teen living in the suburbs. Each is implicated in a drug crime. Disparities in the way their crimes are treated and in the resources they have available to defend themselves lead to very different outcomes: Sam ends up labeled a “felon.” Alec does not.

We also explored this issue by looking at a series of pie charts, also taken from Prisoners of the War on Drugs, which illustrate how racial disparities at each point in the criminal justice process result in African Americans accounting for such a disproportionate percentage of those sentenced to prison for drugs. According to the first two pie charts (dated 2005), African Americans make up 13 percent of the population and 13 percent of drug users. The third chart notes that African Americans represent 35 percent of drug arrests.

“What’s going on here?” I asked my students. “What are these first three charts telling us?”

The first students to speak all misinterpreted the graphs. “It’s showing that even though African Americans are a small part of the population, we’re a big part of the drug community,” one said.

“But look at the second chart again,” I urged. “Thirteen percent of African Americans use drugs; that’s the same percentage as there are African Americans in the U.S. population. African Americans don’t use drugs more than anyone else. Why are they more than a third of those arrested?”

I asked students to think about Berkeley and Oakland, what they see locally in terms of drug use and police enforcement. Are all kinds of students at the high school using drugs? Yes. Do they typically buy those drugs from people in their social circle and use them with people in that circle? Yes. So up in the hills and down in the flatlands, people are using drugs? Yes. But where are the police looking for drugs and drug users? Are they looking in the (predominantly wealthy and white) hills? No. Where is the war on drugs being fought? Mostly in the ‘hood. As one student explained: “There is the dynamic of where the cops are looking. My girlfriend lives in Montclair Hills. There are no cops. But when we go down to East Oakland, it’s normal to see cops everywhere.”

Or, as Alexander explains in her book, “For reasons traceable largely to racial politics and fear mongering we chose war on an ‘enemy’ that had been racially defined years before . . . when police go looking for drugs, they look in the ‘hood.”

The remaining charts in the series illustrate that racial disparity is even more marked in drug convictions and sentencing.

Once we all understood the graphs, it led to some startling and important discussions. For example, an African American student in one class said, “I get it. Slavery is over.” When I asked what she meant, she explained: “Slavery is over, so they had to find other ways to keep black people down.” In a nutshell, that is Alexander’s argument. Not all students would come to see the issue this way, but all seemed to honestly grapple with the idea.

Another excerpt from Prisoners of the War on Drugs outlined the obstacles that people labeled “felons,” particularly “drug felons,” typically face upon release from prison. The restrictions on housing, education, and employment opportunities faced by people who had been incarcerated after release immediately struck most students as not only unfair but also irrational:

“If they went to jail, they have already had some punishment. Now what have they got to look forward to? It doesn’t make any sense to me to keep them from getting an education or being able to find a job. It creates a repetitive cycle.”

“This makes you a second-class citizen.”

“The worst part of this is you can’t get a loan for school. Education is the way that people start over, try to improve themselves.”

The visit from the members of All of Us or None was helpful because it kept the focus on the consequences for real people. Issues of discrimination became more real through the testimony of the panel, but so did issues of personal choice and responsibility. No one on the panel argued that they hadn’t committed a crime. Many of my students come from communities where the police and criminal justice system appear racist, yet they are intimately familiar with the destruction that results from choices to get involved in drugs or other types of crime. My students can be very critical of the police, but are often just as critical of friends and family members they feel have made bad decisions. In a debrief following the All of Us or None panel, many students were quick to reject any argument that sounded like an attempt to excuse criminal behavior:

“My Nana was the biggest drug dealer and she went to jail. Now she’s in church every day and taking care of the whole family. Your past doesn’t necessarily reflect who you are now.”

“But what about someone who has been selling drugs in a neighborhood—do you want them moving back there?”

“If people get addicted, we shouldn’t send them away, we should help them deal with the addiction.”

“My cousin’s been in and out of prison. When he’s inside, he tells the parole board he’s sorry, he’s changed. But then he comes out and does the same thing again.”

Noting their concerns, I prepared a fact sheet with information about employment and recidivism so that students would have a common set of facts to work with during the role play.

“Ban the Box” Role Play

Now it was time for the role play. Jody and I had identified six roles for student groups, and we developed background information handouts for each. These are summaries:

Formerly Incarcerated People: You are some of the millions of Americans who have spent time in prison. Many of you have been incarcerated for nonviolent drug offenses, others have committed violent crimes. Some of you may have been to prison more than once. Disproportionately, you are people of color from poor and distressed communities. Whatever the original crime and the conditions of your imprisonment, you have completed your sentences. As you attempt to re-enter society, you fear how your past incarceration will affect your chances and if your punishment will ever really end.

Criminal Justice Activists: Although you may or may not have served time in prison yourselves, you are sensitive to the obstacles formerly incarcerated people face. You are outspoken about the injustices and unfairness you see in the way that the courts, prisons, and police operate. Some of you may even see prisons as something that we should abolish completely—and see the police not as people who “protect and serve” but as an occupying force in many neighborhoods.

Neighborhood Associations: You are Berkeley residents from all over the city. You recognize that the city needs businesses to prosper and that its residents need good jobs. You want crime to be dealt with so the city is safe. And you want Berkeley to be seen as a place that is fair and welcoming. People in your group are looking at this issue from all sides and may not always agree. For example, residents from the wealthy neighborhoods in the hills might have very different attitudes than residents from neighborhoods like West and South Berkeley, which have higher proportions of people of color, immigrants, working-class and poor residents, and others who are more likely to have had contact with the criminal justice system.

Employers and Business Leaders: You own and operate businesses. You want to run your businesses as efficiently and as profitably as possible. In fact, you must do so, because otherwise you will lose out to your competitors. In order to achieve your goals, you must be free to make decisions about how to run your businesses, including employment decisions. You are running a business, not a charity or nonprofit program for people released from prison. Perhaps employers should be encouraged to look past prior convictions and give people a chance, but you should not be required to do so. You have a right to this information.

Law Enforcement Officials: You represent police officers, parole and probation officers, prosecutors, and local judges. You often work in dangerous situations. Your goal is to protect public safety. You believe that society should treat crime very seriously. To be sure, people leaving prison face tough obstacles. And why shouldn’t they? When a person commits a crime, the burden is on them to reform and prove themselves.

The format of the role play was familiar to my students because we’d used a similar format in other units (I was teaching most of my students for the third consecutive year). Before students began to prepare notes for the city council meeting that is the centerpiece of the role play, I made sure the agenda and order of events were clear:

1. Speakers will present the first group’s opening statement.
2. Then, the city council will question the group. The questioners in the group are expected to help respond to questions.
3. Steps #1 and 2 are repeated until all the groups have presented.
4. During an open question-and-answer period, any of the groups, as well as the city council, can ask questions of the other groups.
5. Each group will make a brief closing statement.
6. The city council will make a decision about the ordinance, offering feedback to the groups and clear reasons for their decision.

Each group decided who would be their “speakers” and who would be their “questioners.” I encouraged speakers to create detailed outlines for their three-minute opening statements; I didn’t want them simply reading from the page. I created a graphic organizer to help them organize their ideas to cover the following:

• Key points about who you are and how you will introduce yourself and your group’s position.
• Using specific factual evidence and persuasive arguments, clearly describe your group’s position on the proposed “ban the box” law.
• Using specific factual evidence and persuasive arguments, clearly describe why other positions on the proposed law are mistaken.

Questioners were given background information on the other groups in the debate and instructed to develop at least six specific questions to ask other groups during the city council meeting, aimed at supporting their group’s argument or challenging the arguments of the other groups. Although students sometimes assume the role of questioner will be easier, writing strong questions can be challenging.

Students had a couple of class periods to prepare their arguments and questions, to rehearse, and to revise as necessary.

The day of the role play, I arranged the desks into a large circle and students sat with their group. The city council members sat together at the front of the room. I acted as moderator.

After I did a brief intro and the “city council” welcomed the community, we began with opening statements. Groups that took the time to imagine detailed characters and make specific “personal” connections to their group’s role found more concrete and impassioned ways to represent their perspective. For example, the criminal justice activists in one class struggled to represent their role, but in the other class the group began:

I am Alyssa Martinez and I am a 17-year-old daughter of an ex-offender. If having witnessed my mother behind bars wasn’t hard enough, watching her get denied from job after job has been a recurring nightmare. Although the moment that a family member is released from jail should be a good one, it only added more stress in our household. My mother had two strikes against her. The first is that she is a Latina and the second is that she is an ex-offender.

This group then went on to connect this fictional personal story to a larger argument for banning the box, making strong use (as most groups did) of the facts and evidence that had been presented during the unit.

In both classes, students in the role of business leaders presented sharp arguments against the legislation. As one of the speakers explained:

We are here to run a business and it is not our job to give second chances. . . . Would you give your money to a teller at the bank knowing they might have a criminal background? I don’t think you would. Over 90 percent of companies report using criminal background checks for their hiring decisions. We do this for the safety of the people. We are not discriminating against but trying to protect people.

Most students, no matter which role they portrayed in the “ban the box” town hall, continued to assume that most convicted felons had committed their crimes and that these crimes required punishment. The disagreement centered on post-prison consequences. The issue of racial inequality and discrimination in arrest, prosecution, and sentencing faded into the background. In our discussions, I tried to make sure students had considered points raised by Alexander. She notes, for example, that white youth are given much more leeway to commit and recover from mistakes, while youth of color often face lifelong consequences. However, this aspect of the issue received relatively little attention. Similarly, while many students used more humanizing language to refer to people inside prisons and people who are formerly incarcerated, others continued to use terms like “ex-con” and “offender.” It is important to encourage students to think critically and compassionately about the role that dehumanizing language plays in the criminal justice system.

In one class, the city council chose not to ban the box completely but to restrict its use. In explaining their decision, the group made no mention of the racial implications of that decision. In the other class, the city council did decide to ban the box. In their decision, they referred not only to generic issues of fairness and recidivism, but to specific concerns about racial injustice.

Letters to Legislators

After the city council decision, I asked students to step out of their roles and write a structured essay explaining their own perspective on the proposed law. As students were completing their essays, the California Assembly was considering a statewide “ban the box” bill (AB 1831) that would affect public, but not private, employers. We went over the details of AB 1831, and then students used arguments from their essays to write formal letters to their local representatives.

In these letters, too, students focused mostly on issues related to recidivism—in particular, studies demonstrating that getting and holding a job greatly reduce the likelihood of returning to prison. About 85 percent of the letters students wrote were in support of AB 1831. In their letters, they often also referred to personal experiences, or to the fact that they were now aware how the issue impacted their classmates and their families.

Not surprisingly, students who opposed AB 1831 put the issue of success for formerly incarcerated people on those people’s shoulders. They concluded that any “special treatment” of people who had been in prison is unfair to both employers and other job applicants who had no criminal records. Although I identified this perspective with a predominantly white conservative philosophy, it was a diverse group of students in my classes who argued along these lines. One of these students, a young African American, wrote: “There should be some type of trust when it comes to an employer and an employee. Keeping the box would make that trust much greater.” Another African American student wrote:

I have multiple family members who are currently incarcerated and family members who have been released from incarceration. . . . I feel that the majority of those who have been convicted of felonies deserved their sentences. It would be unfair and slightly discouraging to those with clean backgrounds if the bill passed. The fact that a formerly incarcerated person would be put in the same category as the innocent when applying for a job isn’t fair to the innocent.

In their letters, few students expressed the full complexity of the issue as presented in the unit. Perhaps students took my advice to keep their letters brief and chose arguments they believed would be most persuasive. Here is a typical example of a letter from a student in support of AB 1831:

While this bill does not personally affect my life or my family’s, it does change how our society reintegrates our offenders, and it is an ethical question as well as a fiscal one. . . . People with jobs and stable community lives are much less likely to return to committing crimes in order to survive. But if those people are constantly turned away from potential jobs due to a mistake they committed, then they are even further influenced to step over the line.

However, some students wrote letters of support that did not shy away from the racial dimension of the issue:

The disadvantages of keeping the box outweigh the advantages completely. Keeping the box means that the employer knows every little detail about who they’re hiring, but it also means promoting discrimination, poverty, recidivism, and the idea that people don’t deserve a second chance. . . . This system makes it almost impossible for people who have made certain mistakes to get back on their feet, especially people of color. . . . By banning this box, we can eliminate a major form of discrimination and save the lives of millions of people.

In the end, AB 1831 passed the California Assembly but didn’t get out of committee in the Senate.

We had assigned ourselves and the students a complex task in this unit, predicated on challenging common assumptions held in our society. Most satisfying was my sense that my students continued to engage with it and to challenge themselves, one another, and me. I think the role play format enabled students to grapple with the full complexity of the issue, and to resist proposing easy solutions.

In the end, my students’ responses and conclusions led me to reflect on the inadequacy of common perspectives and ideologies that divide people on criminal justice issues. On the one hand, concerns about fairness and opportunity traditionally ascribed to liberals were obviously important to all students, but so were the concerns of public safety and crime prevention traditionally ascribed to conservatives. Indeed, students did not feel that these concerns have to be opposed to one another. It was instructive to me to see them openly struggle to hold both facets simultaneously as they attempted to find conclusions that could remain true to their personal experiences as well as the facts and ideas presented in the unit.  

Resources

• Lois Ahrens, ed. “Prisoners of the War on Drugs,” in The Real Cost of Prisons Comix. PM Press, 2008.
• Michelle Alexander. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. The New Press, 2012.
• Michelle Alexander Readings
• Ban the Box Role Play Instructions
• Ban the Box Role Play Profiles