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Using Criminal History Records in Hiring: CCCCO Legal Guidance

On December 31, 2018, the General Counsel for the California Community Colleges Chancellor’s Office issued a legal advisory to the state’s community colleges and districts on the use of criminal history records in hiring, promotion and retention decisions (Office of General Counsel Advisory 2018-04).    To help the community colleges comply with their legal obligations, the advisory summarizes the applicable laws regulating employment decisions involving academic, classified and student positions, which includes federal and state civil rights laws, the Education Code, and California’s Fair Chance Act (which took effect January 1, 2018).

As the General Counsel concludes, the “[f]ederal and state laws ensure that community colleges retain broad discretion to make individualized suitability determinations that balance an applicant’s prior conviction history against evidence of rehabilitation and other mitigating factors – even with respect to convictions for sex and drug offenses.”  Also of special note, the advisory emphasizes that the Fair Chance Act provides a “framework for using criminal history records that will help community colleges based their decision-making on individualized assessments and business necessities, and avoid the using criminal history records in ways that perpetuate invidious discrimination.”

Supplementing the legal advisory, the Chancellor’s Office will soon be issuing a policy guidance that will likely include best practices and sample forms to help the community colleges to fairly and effectively make employment decisions involving criminal history information based on the applicable federal and state laws.   We will circulate the policy guidance when it is made available, and identify additional opportunities to help ensure that these important materials generated by the Chancellor’s Office are broadly disseminated across the community.