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Nebraska ACLU: Drop criminal history from license applications

Even though Nebraska has some of the least burdensome barriers to entry to a license in the country, the state could improve by dropping questions about criminal history which are now standard for the state's 176 licensed occupations, says the state American Civil liberties Union in a report released in September.

The ACLU’s Campaign for Smart Justice, sponsor of the report, aims to rethink and reform conditions that do not provide a meaningful transition for former prisoners back into communities and the economy.

About 59,000 free Nebraskans with a former felony conviction were counted in 2006, and many would be seeking licensure with a misdemeanor conviction on their record.

The license requirements can prove especially problematic in rural areas where employment opportunities may be limited, the report notes. A range of license applicants may be asked about criminal convictions, including those seeking a license as asbestos worker, body art/tattoo work, aviation mechanic, lead worker, jockey, dining assistant, radon tester, and others.

The ACLU is recommending four steps:

  • Passage of a state law forbidding discrimination by licensing authorities unless the conviction was directly related to the type of employment. Kentucky, for example, has passed a state law specifically superseding all regulations or prior statutes that required a background check, moral fitness, or ban on someone with a conviction.
  • A rewrite of governing regulations to take into account rehabilitation or mitigating circumstances and provide applicants the opportunity to address concerns.
  • Removal of ambiguous language like “good moral character” for all Nebraska licensing requirements. This term “appears to be a code to discourage applicants with a criminal history,” the ACLU says.
  • Banning the box for all employers and all professional licenses. “Prohibiting criminal record inquiries until after an applicant is determined to meet all other occupational requirements completely eliminates any prejudice of an applicant as a result of a criminal history and allows them to be assessed on their merits, the ACLU says.

“Limits on a horse trainer who once shoplifted or a manicurist who had a driving under the influence charged do not reflect an individual’s capability with their field,” the ACLU said. “Furthermore, having an applicant’s entire criminal record reviewed alongside their application allows the specter of discriminatory practices, where an otherwise qualified individual might be rejected based on unconscious bias.”

Court challenges of vague standards in licensing applications could well lie ahead, the ACLU said. “While there have not yet been case rulings on whether a state licensing agency should only be allowed to inquire as to recent past convictions which relate to the occupation, that may be the litigation wave of the future.”

Despite a 1957 U.S. Supreme Court ruling warning of the potential for terms like “moral turpitude” and “good moral character” to help arbitrarily and discriminatorily deny licenses (Konigsberg v. State Bar of California, 333 U.S. 252, 263), use of these vague standards persist, the ACLU says. They can create the perception that an applicant with a criminal record may be automatically considered immoral and untrustworthy. Entry level nursing assistants in Nebraska, for example must report whether they have been involved in a crime of moral turpitude, defined as: “any act or behavior that violates accepted moral standards and in legal terms means anything contrary to justice, honesty, modesty, good morals.”