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.