At the beginning of June, Obama’s Department of Housing and Urban Development (HUD) ruled that landlords who exclude ex-convicts as renters may be breaking the law under the Fair Housing Act.*
The new rule reads, “A housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate.”
In essence it prohibits a blanket ban against tenants with criminal records. It still permits a case-by-case assessment of whether tenants could pose a threat. In other words, the new guidelines allow a landlord from excluding an ex-convict if that person represents a threat to the safety and security of the other residents in the building.
The new rule also cautions landlords against selectively enforcing a ban on applicants with criminal records: denying housing to black ex-felons while accepting white people with criminal histories.
Supreme Court Ruling on Disparate Impact
The new guidelines follow a 5-4 Supreme Court ruling last June that the 1968 Fair Housing Act applies to disparate impact as well as “discriminatory intent”. The ruling in Texas Department of Housing and Community Affairs v Inclusive Communities Project prohibits any housing policy that results in poorer outcomes for protected groups, such as black Americans, regardless of whether they were intentionally discriminatory.
The HUD requirement remains that local public housing authorities ban (for life) anyone convicted of producing methamphetamines on public housing property, as well as registered sex offenders. HUD guidelines also require public housing authorities evict public housing residents if they or someone in their unit – even an unrelated guest – commits a drug crime.
The Felon Next Door
On April 4, the British Guardian ran an excellent and (in my opinion) balanced article about the cruel bans on housing and employment for formerly incarcerated African American and Hispanic men who have been preyed upon by a brutally racist criminal justice system.** Because of systemic housing discrimination – even by public housing facilities – many of these individuals have been doomed to homelessness on their release.
Contrast that with a blatantly racist article in Investors Business Daily about the Obama administration making it easier “for felons to move in next door.” IBD accuses the Obama administration of trying to “racially balance” the US ZIP code by ZIP code. The outcome they claim will be to import violent crime into the suburbs, while lowering property values and negatively impacting local schools.
*The Fair Housing Act was passed in 1968 and signed into law by President Lyndon B Johnson. It prohibits discrimination in housing on the grounds of race, color, religion, sex or national origin. Criminal history is not a protected status under the law, but HUD’s new guidelines rely on the concept of “disparate impact”, noting that black and Latino people are disproportionately incarcerated and therefore more likely to excluded by blanket policies.
**In The New Jim Crow, African American attorney Michelle Alexander gives a heart breaking account of police bounty systems that deliberately target minority neighborhoods looking for pot smokers and innocent black arrestees forced to cop felony pleas because they can’t afford decent legal representation.
The US has some 6.6 Million convicted felons, but if you include those arrested and NOT convicted, or convicted on misdemeanor charges, the number swells to 17.3 Million. With 200+ mugshot websites extorting money from those arrested but not convicted, a google search will quickly exclude them from getting a job or renting a place to stay. They wonder why they have such a high incidence of repeat offenders, well, if you do not allow felons to participate, what are they supposed to do? What are they going to do once they go hungry?…….and why does it always have to be about race to get attention from the media? Great topic, greetings!
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Hi Onnovocks, thanks for commented. The US prison industrial complex is a disgrace. I worked with prison rights groups for nearly 16 years in Seattle, and this has been really hard to get media attention for this issue. I’m not sure it would be covered now if Obama hadn’t included it in his weekly radio address.
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Here’s an idea! Why didn’t HUD place ex-felons into homes that they sold to investment firms for pennies on the dollar? Why did they sell houses to investment firms for pennies on the dollar and then turn around and state that ex-felons should not be denied housing when HUD is contributing to the increased numbers of homeless people, including children? These investment firms that bought those HUD houses are now throwing people out left and right because they are bought on a contract for deed and the housing payments are too high, not to mention that the homes are usually filled with issues and need costly repairs. The home then reverts back to the investment firm when the poor buyer falls behind on payments or cannot do the necessary repairs on the property to get it up to code. A win/win for investment firms and a lose/lose for the poor.
And in my opinion, the exclusion of ex-felons in housing will continue because who is going to enforce this on a case by case basis? Underfunded HUD? Not to mention the fact that nearly every city’s HUD Section 8 program is closed thanks to a high demand for a limited number of Section 8 vouchers. And in the private sector, what ex-felon has the means to rent in gentrified neighborhoods that formerly housed them? So, ex-felons are going to be out-on-the-street regardless of this unimproved version of HUD fixes because how will the “threat to the safety and security of the other residents in the building” be determined and by whom? By peeing into a cup and given to a potential landlord? This is too little, too late!
I only ‘liked’ this because you did bring this ‘farce’ of a fix of HUD’s to our attention so that we can see that it ain’t worth spit! Back to the drawing board, HUD should go!
You sure got that right, Shelby. HUD is a cesspool, undoubtedly the most corrupt federal agency.
However I’m a little more optimistic that you about this law having a positive effect. The new rule won’t be enforced by HUD but by the courts. Like all anti-discrimination legislation, you have to sue if you’re discriminated against. I don’t think you know white men as well I do, but the one thing they’re more terrified of than anything is getting sued. And prisoners rights groups like Fortune who fought for this rule change are just itching to get their hands on a juicy lawsuit.
Low income state, county and city subsidized housing will also have to change their rules about excluding ex-offenders – and I suspect this is where the ruling will have the most impact. You’re right about the impact of gentrification – rents are too high for ex-offenders to get into private housing. But public officials are even more fearful of getting sued than private landlords because it can often end their career.
I hope you are right and that I am wrong! I really do! Because ex-felons are going to need some sort of activist group to file a lawsuit for them since they’ll certainly be too poor to do so. And the courts had no problem handing down those mandatory minimum sentences for these felons that got caught with a dime bag of weed and the ex-felon ended up with a rap sheet. I do understand that criminal court is different from civil litigation, but when you’re Black, it’s ALL the same! We never fare well(whichever be the case), and that is a fact!
Thanks Dr. Bramhall!