When Discretion Means Denial Redux: How HUD Policies Continue to Deprive Housing to Persons with Criminal Records
We’ve been at this crossroads before—this is our Groundhog Day. In 2011, former Secretary of Housing and Urban Development (HUD) Sean Donovan urged HUD-supported affordable housing providers to use their discretion in admitting persons with criminal histories to housing. But a 2012 Shriver Center report found that affordable housing providers in Illinois were essentially using this discretion to enact far-reaching criminal background check admission policies. We found rental housing admission policies that denied admission to anyone who had ever been arrested for anything in their lifetime. Other policies went so far as to impose 100-year criminal background checks on applicants. In short, HUD’s unchecked deference to housing providers for their criminal background check policies resulted in draconian, blanket-ban formulas that could run afoul of civil rights laws. Our 2012 report urged HUD to take action to limit these policies and to ensure that housing providers make individualized determinations of an individual’s criminal history based upon the seriousness of the crime, how long ago it occurred, and any evidence of rehabilitation, among other factors. Since that report, however, HUD has taken no action to change its policies or curb troubling criminal background check policies by its housing providers.
Now, almost three years later, a review of over 300 admission policies from across the country has found that these problems are not unique to Illinois. Indeed, draconian, blanket-ban admission policies among HUD housing providers are now the norm across the nation. Essentially, nothing has changed—public housing authorities and federally subsidized project owners continue to use their discretion, granted by HUD, to deny admission to applicants for arrests, and they frequently automatically exclude applicants with any kind of criminal record.
These housing admission policies are increasingly challenged as a violation of civil rights laws, something long recognized by the Equal Employment Opportunity Commission regarding aggressive employment background checks. HUD must acknowledge well-documented evidence of racial bias within the criminal justice system that results in racial minorities having disproportionate contact with that system. Because HUD is bound by civil rights laws it can no longer ignore the draconian policies it has essentially sanctioned. HUD’s Office of Fair Housing and Equal Opportunity should issue guidance, similar the EEOC’s, making clear to housing providers that some of these housing-related policies violate civil rights laws and can be considered a proxy for discrimination according to race. Current HUD Secretary Julian Castro should also go beyond what his predecessor did and ban the use of arrest records; ban lifetime or blanket bans; and obligate housing providers to make individualized determinations based on the seriousness of the crime, the number of years passed since the offense was committed, and any evidence of rehabilitation.
We’ve said this all before however. Now it’s time to start listening.